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Senate Judiciary Committee Holds Day 2 of Ashcroft Confirmation HearingAired January 17, 2001 - 4:33 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KYRA PHILLIPS, CNN ANCHOR: Now, the other story we've been following all day: the confirmation hearings that have been happening in Washington -- the most contentious hearing involving attorney general nominee John Ashcroft.
Our Bob Franken has been following that one.
And Bob, it seems the big issue -- I guess you say could that partisan tempers began to flare -- was the issue of race.
BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, it is the issue of race that has been the charge that has been leveled against Ashcroft by some of the civil-rights organizations since this began. And it centers around a Missouri state Supreme Court judge, an African-American, Ronnie White. He was nominated by President Clinton to be a federal judge.
John Ashcroft, who was in the midst of election campaign, suddenly decided to take him on and was successful in convincing his fellow Republicans to all vote against White, which meant that he was not confirmed as a federal judge. Now, the civil-rights organizations say that that was Ashcroft, in the midst of an election campaign, deciding to use racial politics to his advantage.
Ashcroft repeatedly has denied that, saying that he was just opposed to the judicial philosophy of Judge White, that he felt he that was too pro-defendant, citing in particular a murder rampage in 1991. Judge White on the Supreme Court dissented against capital punishment for James Johnson, who killed four, including the wife of a sheriff. And that, he said, was why he opposed the nomination -- successfully opposed the nomination of Judge White.
Tomorrow's witness is expected to be White. He has never testified before. He has said nothing about this of any consequence publicly. He is expected to have some very harsh comments about Ashcroft. Ashcroft's defenders have been saying all day long that he was justified in opposing White's nomination. So the issue comes to the forefront tomorrow. Well, we got a preview of the coming attractions today, as several Democratic senators have used fairly harsh language in saying that Ashcroft was, at the very least, irresponsible, a charge he denies -- Kyra.
PHILLIPS: Bob, also strong emotions with the issues -- I remember earlier this morning -- gun control, abortion, antitrust. Did you find one possibly more interesting than another?
FRANKEN: Well, there are, of course, any number of issues that are interesting. First of all, let's talk about abortion. Ashcroft has said now that as attorney general, he would not try and get the Supreme Court to overturn Roe vs. Wade. He says that issue is -- quote -- "settled." He said that repeatedly.
The significance of that is that he has said, as a public official, for so long, that that was a "miserable mistake" -- to use his words -- the Roe vs. Wade decision by the Supreme Court. So what they're trying to say is that the people who are for abortion rights have to not have any fears that he won't enforce the law and that he won't stand behind Roe vs. Wade. Regarding gun control, Senator Edward Kennedy really took off on Ashcroft for a speech that he had made at some point talking about the right to own a gun and the right of freedom of expression, saying, Ashcroft said, they are protections against a tyrannical government.
Kennedy was making the accusation that Ashcroft was speaking about the United States government as a tyrannical government, something that Ashcroft denied. So you are having this kind of exchange. The only thing is, as far as the opponents of Ashcroft are concerned, none of this is really seeming to faze him. He is, by all accounts, very well coached. He has been told: Whatever you do, don't get ruffled. Keep your composure. That will negate the charges that he is an extremist in the public perception.
Remember, now, this is one of those television hearings, where perception is reality. Thus far, most of Ashcroft's handlers believe that he -- self -- has handled himself very well.
PHILLIPS: Antitrust: another issue that was discussed, Bob. Brief us on that.
FRANKEN: Well, antitrust, of course, is one of those issues that the Clinton administration reinvigorated. We all know about the case against Microsoft, that type of thing. Ashcroft has more reservations about it.
He is not as aggressive in that field, although he has said that there are cases which trouble him. This is always a significant difference between Republican and Democratic administrations. Democrats are usually more prone to take on big business, and the Republican administrations less inclined to do so. Of course, Ashcroft would be the administrator at the Justice Department of the Antitrust Division. So his philosophies are extremely important.
PHILLIPS: Now, despite those tough questions and the sharp exchanges that we've witnessed, Bob, Democrats are predicting, some have said, that Ashcroft will definitely win this confirmation. What do you hear?
FRANKEN: Well, that seems to be the feeling. Tomorrow is going to be the best shot that the opponents of Ashcroft would seem to have, with the testimony of Judge White. But there's a growing feeling that Ashcroft went in with the probability he would be confirmed anyway. Let's not forget that, as a former senator, he enjoys a premise on the part of senators that they will, in fact, defer to him.
But Ashcroft went in with that. He seems to have enhanced his chances. And many of the Democratic senators are now making it clear that they believe that he is, in fact, going to be confirmed. Some of that probably translates to their voting for him. They have to watch out that they don't end up as the ones who are perceived as the political opportunists, maybe being perceived as extreme themselves. They always have to walk that delicate, that thin line.
And thus far, it seems that Ashcroft has been able to just to avoid any sort of problems, avoid being bruised at all by the Democrats.
PHILLIPS: And Ashcroft keeps talking about how he will advance national interests and not advocate his personal interests. He seems to repeat that over and over again. But many senators seem to have many concerns with regard to his personal interests.
FRANKEN: Of course, you have put your finger on what is the fundamental issue here. The people who are critics of Ashcroft say he has an extended record of outspoken opposition to certain laws of the United states, abortion certainly being one of them -- assault-weapons ban, various gun-control laws that he has opposed as a senator.
He says that he may have done so when he was an advocate for legislation. But when he is held in office which requires the administration of the law, he says, he has evidence -- and he provides anecdotes -- evidence that he has, in fact, administered the law. One example: In the matter of the separation church and state, Ashcroft has been very critical of many Supreme Court decisions about that.
He says, however, that as a Missouri attorney general, he acted against some of his political allies, the Christian conservatives, by putting out an opinion saying that they should not pass out religious materials on school grounds. That is one of the cases that he cites as evidence that he will go against his stated principles because the higher principle -- he has said over and over again -- is the law must be followed, and that he would have a responsibility, as the steward of the law, to in fact see to it that this it was enforced.
PHILLIPS: And while we're waiting for this hearing to resume -- we are getting closer, Bob -- another hearing still going on, and that is for the confirmation for secretary of state to Colin Powell.
PHILLIPS: Yes, I -- a much calmer atmosphere, Bob.
FRANKEN: I suspect that there is somebody standing at the door saying, "Welcome to the Love Boat."
FRANKEN: Colin Powell, of course, is a national icon. There is nobody in the world who would probably want to express opposition to him. He is considered a man who is qualified: a former general, a former head of the National Security Council, etcetera, etcetera. We know his history.
There are discussions going on in that hearing about some the substantive issues that are going to be dealt with, issues like the relationship between diplomacy and the military, issues like missile defense, etcetera. That is to be expected. But there is absolutely no chance -- or such an infinitesimal chance -- that Colin Powell would be anything but confirmed, probably unanimously -- Kyra.
PHILLIPS: Bob Franken, thanks so much -- your analysis and insight always welcomed here.
We're going to go back to the most contentious hearing at the moment, involving attorney general nominee John Ashcroft. We'll listen in.
(JOINED IN PROGRESS)
SEN. PATRICK LEAHY (D), VERMONT: ... other confirmation hearings and have been balancing their time.
Let me begin. In October of '97, President Clinton nominated James Hormel to serve as the U.S. ambassador to Luxembourg. He was an eminently qualified nominee. He had a distinguished career as a lawyer, a businessman, an educator, a philanthropist. He had diplomatic experience as the alternate U.S. representative to the UN General Assembly.
Luxembourg's ambassador to the U.S. -- because what we always do with an ambassador is we check first with the country that he'd be sent to see if he'd be acceptable. They said the people of their country would welcome him. A clear majority of senators were on record as saying they would vote for his confirmation.
That vote never occurred, because it was blocked. In the Foreign Relations Committee, only two senators voted against him, Senator Ashcroft and Senator Helms. I'm told, Senator Ashcroft, you did it without attending the hearing or submitting questions or statements for the record.
You did say at the luncheon with reporters that, quote, "People who are nominated to represent this country have to be evaluated for whether they represent the country well and fairly. His conduct and the way in which he would represent the United States is probably not up to the standard that I would expect."
It would appear that you're referring to his sexual orientation, although this is a man that, while you placed a hold on his nomination, all but one other member, Republican and Democrat, in the Foreign Relations Committee voted for him. Former Secretary of State, in President Reagan's administration, George Schultz strongly supported him.
After you voted against his nomination in committee, James Hormel wrote a letter.
He asked to meet with you regarding his qualifications. He followed up with a number of phone calls to your office. You did not return the phone calls. Your staff did not. You refused to meet him, which is similar to a complaint made by Congressman Conyers, who shared concerns about your nomination.
Now, I know it is traditional for senators to extend the president's nominees the courtesy of a meeting. I don't think I've ever declined a meeting with any nominee of any president when they've asked to. I know of no senator who has refused to meet with you when you've asked.
So, I'm asking you this: Did you block his nomination from coming to a vote because he is gay?
JOHN ASHCROFT, ATTORNEY GENERAL NOMINEE: I did not. And I will enforce the law equally without regard to sexual orientation if appointed and confirmed as attorney general. Let me just address these issues a little bit since they've been raised.
LEAHY: Why did you refuse -- why did you vote against him? And why were you involved in an effort to block his nomination from ever coming to a vote?
ASHCROFT: Well, frankly, I had known Mr. Hormel for a long time. He had recruited me, when I was a student in college, to go to the University of Chicago Law School.
LEAHY: He was your dean, was he not?
ASHCROFT: At the University of Chicago, he was an assistant dean at the law school who, I believe, had focused his efforts on admissions process and things like that. The dean of the law school, if I'm not mistaken, was a fellow named Phil Neal (ph).
But I did know him. I made a judgment that it would be ill- advised to make him ambassador based on the totality of the record. I did not believe that he would effectively represent the United States in that particular post.
But I want to make very clear: Sexual orientation has never been something that I've used in hiring in any of the jobs, in any of the offices I've held. It will not be a consideration in hiring at the Department of Justice. It hasn't been for me. Even if the executive order would be repealed, I would still not consider sexual orientation in hiring at the Department of Justice because I don't believe it relevant to the responsibilities.
LEAHY: To what extent, though, the -- I'm not talking about hiring at the department, I'm talking about this one case, James Hormel. If he had not been gay, would you have at least talked to him before you voted against him? Would you have at least gone to the hearing? Would you have at least submitted a question?
ASHCROFT: I'm not prepared to redebate that nomination here, today. I am prepared to say that I knew him. I made a judgment that it would be ill-advised to make him ambassador. And as a senator, I made the decision that, based on the totality of his record, that I didn't think he would effectively represent the United States.
LEAHY: And it was your conclusion that all the other senators on the Foreign Relations Committee, with the exception of Senator Helms, were wrong; you were right. That George Schultz, who had been the secretary of state under President Reagan was wrong, and you were right. And the people of Luxembourg, who had the full record on Mr. Hormel were wrong, and you were right. And you did that without either meeting with them, going to the hearing asking a single question, or even answering his letter.
ASHCROFT: No, I did not conclude that I was right and they were wrong, I exercised the responsibility I had as a senator to make a judgment. I made that judgment. I expected other senators to reach judgments on their own. They have a responsibility to do that. I have a responsibility to do what I did. And based on the totality of the record and my understanding, I made that judgment. I did not pass judgment on to other senators or upon those who endorsed his nomination.
LEAHY: But part of that judgment was to help make sure that these other senators never got a chance to vote on Mr. Hormel on the floor. So, basically, you substituted your judgment for what appears -- at least by those who stated their willingness to vote for him, you substituted your judgment for a majority of the United States Senate.
ASHCROFT: I don't believe I put a hold on Mr. Hormel's nomination.
ASHCROFT: I don't believe I put a hold on Mr. Hormel's nomination.
LEAHY: If you find otherwise, feel free to correct the record on that.
SEN. ORRIN HATCH (R), UTAH: As one who openly supported Mr. Hormel, because of his experience, you made the decision, based upon your knowledge, the totality of the evidence, and as a senator, you had a right to do so, is that right?
I mean, we can disagree around once in a while around here. Or do we just have to play the political correctness game right on down the line?
ASHCROFT: Well, I made a judgment based on the totality of the record, on one...
HATCH: I accept that.
Now, Senator Ashcroft, isn't it true that, while it's been suggested that as attorney general you essentially mounted too vigorous a defense of your client in the state of Missouri in the St. Louis school litigation, you were the one insisting to state officials that the court orders be followed? Indeed, didn't the Democratic state treasurer get so frustrated with your insistence that orders to pay for students' transportation be complied with that he told the press he was planning to hire outside counsel to mount a more vigorous challenge to these orders; is that correct?
ASHCROFT: That's my recollection.
HATCH: All right. In other words, while some have criticized you for defending your state in these matters, others, including the Democratic state treasurer, were criticizing you for not litigating them hard enough; is that right?
ASHCROFT: That's correct.
HATCH: Well, so, in fact, you're being criticized for defending the state while the Democratic state treasurer was resisting complying with the court orders which you were insisting he had to comply with. Now, I sense, maybe, a little serious hypocrisy here. Isn't what you were doing simply following the law and discharging your duties in defense of your state as a state attorney general?
ASHCROFT: I believe that I was faithfully discharging my duties and protecting the interests of the state and the children in the state. When the state treasurer balked at writing the checks, it became necessary to send a special delegation from my office to him to indicate to him that we believed compliance with the law was the inescapable responsibility; that we had the duty and the responsibility to resist in the courts where we felt like there was injustice, but upon the conclusion of the matter by the courts, our duty, we felt, was to pay the bill.
And I still believe that to be the case. And fortunately, the state treasurer at the time made the decision to abandon plans for a separate counsel and to go ahead and make the payments.
HATCH: Mr. Chairman, I'd like to return to one point raised earlier today, where Senator Ashcroft was criticized for his defense of the state of Missouri in the school desegregation cases.
Well, Jay Nixon, Senator Ashcroft's Democratic successor and the current attorney general, also opposed state funding for desegregation, at least that's my understanding. Is that true?
ASHCROFT: Yes, it is true.
HATCH: Well, let me go further. Jay Nixon took many of the same positions as John Ashcroft, yet Senator Ashcroft's been attacked by some of our Democratic friends and Jay Nixon has been supported by Democratic friends. Indeed, many of them campaigned for them. Am I wrong in making those comments?
ASHCROFT: I think it's fair to say that he's been supported by Democrats. He's the Democrat attorney general of the state.
HATCH: Oh, I don't blame him for that. I'm just saying that it just seems kind of a double standard to me.
ASHCROFT: Well, the standard that I repaired to was my -- the need to represent the state and to defend its interests, but when a matter would be concluded, we complied with the orders of the federal district court and of the Eighth Circuit court of appeals and of the United States Supreme Court.
HATCH: Senator Ashcroft, I think Senator Cantwell raised an important issue regarding enforcement of environmental laws, on which you have a solid and positive record.
For example, as Missouri attorney general, you aggressively enforced Missouri's environmental protection laws against polluters, including an action brought to prevent an electric company from causing oxygen levels in waters downstream from the power plant to fall, thereby harming fish, and to recover damages for fish kill.
A successful action brought against the owner of an apartment complex for violations of the Missouri clean water law relating to treatment of waste water. And an action against an owner of a trailer park for violations of the Missouri clean water law relating to treatment of waste water.
Furthermore, as Missouri attorney general, you filed numerous amicus briefs, friend-of-the-court briefs, supporting environmental protections. For example, in Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission, 1983 case, you filed a brief supporting a state of California law that conditioned the construction of nuclear power plants on findings by the state that adequate storage facilities and means of disposal are available.
In Sforhes (ph) v. Nebraska, a 1982 case, you endorse the state of Nebraska's effort to stop defendants from transporting Nebraska groundwater into Colorado without a permit.
Let me just mention one more. In Baltimore Gas and Electric Company v. Natural Resources Defense Council, Inc., 1983, you filed a brief supporting the Natural Resources Defense Council's position on tougher environmental relations relating to the storage of nuclear waste.
Now, this is impressive and, as U.S. attorney general, would you similarly enforce our country's environmental laws?
ASHCROFT: I will enforce the laws protecting the environment and do so to the best of my ability. It is a public trust and it is a special responsibility to the next generations.
HATCH: Well, thank you, Senator, my time is up.
LEAHY: Do you want more time?
ASHCROFT: No, that's fine.
SEN. EDWARD KENNEDY (D), MASSACHUSETTS: Thank you very much. Of course, Jay Nixon, no matter how nice a fellow he may be, is not up for attorney general. That's the major difference. That's the big difference in this particular case.
Now, Senator Ashcroft, yesterday and today you testified that you'll uphold your oath of office to defend the Constitution. Five times before you took that same oath. As attorney general and governor of Missouri, you said, "I swear to uphold the Constitution of the United States and of the state of Missouri, and to faithfully demean myself in the office, so help me God."
And yet, you fought the voluntary school desegregation in St. Louis. In fact, Judge Stephen Limbaugh, who was appointed by President Reagan, noted that, "the state has resorted to factual inaccuracies, statistical distortions and insipid remarks regarding the courts handling of the case." Limbaugh continued to warn the state, "to desist in filing further motions grounded in rumor, unsubstantiated allegations of wrongdoing." He added that, "the state even resorted to veiled threats towards the court to thwart implementation of the previous order." That was his estimate on.
When you became attorney general in 1976, Roe v. Wade, guaranteeing a woman's right to choose, had been the law of the land and needless to say, all during this period of time is after the Brown v. Board of Education. Now, when you became attorney general in '76, Roe v. Wade guaranteed a woman's right to choose had been the law of the land. For three years, during the period from '73 and '76, the Supreme Court had not altered it's original ruling, the decision was settled law.
But during the period between '76 and '92, the 16 years that you served as attorney general and governor of Missouri, you became one of the nation's most aggressive leaders of the strategy to dismantle or reverse that decision protecting a woman's right to choose.
You brought case after case in the lower federal courts. You pressed those cases all the way to the United States Supreme Court. You personally argued the planned parenthood case in the Supreme Court. You signed legislation into law to try to overturn Roe and to severely restrict a woman's right to choose. And at a 1991 dinner, you boasted that no state had more anti-abortion cases that reached the Supreme Court than Missouri.
Isn't there a serious loophole in your view of your oath of office? You say you'll enforce the laws of the land as long as they are still on the books. But in the fundamental areas, like civil rights, women's rights to choose, gun control, when you don't agree with the laws on the books, you've demonstrated beyond any reasonable doubt that you'll use all the powers of your office to undermine those laws to persuade the courts to overrule them. That's what you've done every time before -- every time. So why will it be any different this time?
ASHCROFT: Let me just say to you that I have lived within the rulings of the court in every one of those settings. Roe v. Wade defined a setting, which said that abortions were not to be regulated -- or not to be forbidden, but it left a very, very serious gap in the health care system regarding reproductive health services.
If you couldn't regulate abortions, could you have minimal standards for abortion clinics? Could you require that abortions would be conducted by physicians instead of back alleys? Could you require that there be certain conditions, like parental consent for minors who are going to have an abortion? Could you require that there be certain counseling, so that young women who are going to get an abortion, so that they could be assured that they were making a decision that was in their best interest and that they understood the health impacts? All of these questions were things that were left unanswered and unresolved by the case of Roe v. Wade.
And virtually, every jurisdiction in the United States began to find ways to safeguard everything from maternal health to provide the right framework in which to exercise its responsibility as it related to this situation in reproductive health care.
KENNEDY: But my point, though, Senator, is that you lived within the rule because you had to. That was the law. But you tried to change and alter and took great pride in it. And we've heard -- based upon deep-seated beliefs, which I respect.
But that is the record. You took the oath of office all those times as attorney general and governor, and still were willing, in these areas...
ASHCROFT: Senator, let me respond. We're out of time on this, but I think implicit in what you're saying here is that a person swears to uphold the law, it means if he goes into government, he can't govern by way of changing the law. Every time -- if you'll allow me to answer this question. I've been very patient in this respect, and I would just ask the Senate for the right for me to respond.
LEAHY: The chair will give you whatever time you need. I've said that a dozen times during this hearing.
ASHCROFT: Mr. Chairman, I appreciate that assurance as well, but I would like to have an uninterrupted time to explain my position here. And all the assurances of time will not allow me to make a statement, which I think I ought to be able to make here. And I think in fairness I would request that.
Now, you've criticized me because I said that I would uphold the law and the Constitution of the United States, and then I did things to define the law by virtue of lawsuits. I did things to refine the law when I had an enactment rule, which is the job of a governor when he signs things into the law.
I don't think it's subverting the Constitution for a governor to sign a change in the law. I don't think it's a breaking of his oath. I think all those things are done within the framework of the law and within the framework of the Constitution.
There seems to be a misunderstanding here today, and I'm sorry that I have this responsibility to clarify it, that when someone tests an order in court, that someone is defying the law. Frankly, I have always been raised to believe that the way you tested things was take them to court; that the judicial system was established for the purpose -- for the purpose of resolving differences. That's why the Constitution sets it up.
And so that, yes, when the state was offended by an order which we thought was illegal, our view was not to disrespect it, our view was not to disobey it. Our view was to litigate it, and then if it came out in our direction, we were winners; and if it came out against us, we abided by the law.
You raised the case that I argued in the Supreme Court. There were a handful of different provisions there. Some, the Supreme Court said, "No, these don't pass muster." Some, the Supreme Court said, "These pass muster."
Now, I submit to you that to participate in the development of the law is not to violate your oath, as long as you participate in the development of the law in accordance with the opportunities expressed.
Now, I defended the state of Missouri. I defended the state of Missouri aggressively. That's the job of the attorney general. Jay Nixon has done the same. All of the attorneys general -- Jack Danforth did it before I did it, Jay Nixon did it after I did it. That's the job of an attorney general. And my job as attorney general would be for me to defend the law of the United States, and I'll do it -- all of the laws. That's my job.
Now, one of the laws which might pass is a law that might deal with partial birth abortion. Now, I don't know whether you would ask me, if the Congress comes up with a law that relates to that issue, to abandon my duty to defend that law. A majority of the members of the panel on this committee voted in favor of such a law in the last Congress, and I think if Janet Reno -- pardon me -- if Attorney General Reno had defended the law, she wouldn't have violated her oath of office.
So it's with -- I just -- I want to say that it's not uncommon for attorneys general to defend the interests of their states; that's what their job is. And it's not a violation of their oath of office or the Constitution of the United States to seek to make sure that what is done at the state level is consistent with the Constitution at the state level or consistent with the Constitution at the national level.
And when we swear to uphold the oath of office, I think we are swearing to do things in an orderly and lawful manner. Jay Nixon has done that as the attorney general of Missouri. I don't criticize him.
And I'm sorry, Mr. Chairman. I have gone too long.
And I apologize. And I thank all of you for allowing me to respond.
KENNEDY: Just to finish it -- but I appreciate your response. My sense is, Senator, is that you are attempting to overturn the law on the Roe v. Wade. That is wasn't just testing it to find out its limits, it was to overturn it. That was the thrust.
And in respond and the reason I raise this is, because earlier today you gave the assurances, in response to Senator Schumer, about how you would treat that case in the future. And the logical question came into my mind that if you challenged it in the passed, having taken the oath of office, wasn't there a good likelihood that you would challenge it in the future, after taking it? That's the...
ASHCROFT: Well, I think that's a very good question. I'm very pleased to have a chance to answer that.
When the state legislature of Missouri passed the law that might have needed to be evaluated in that context, I advanced that law. It was my job. I advanced that in the courts to defend it.
But my job as attorney general of the United States will be to defend the law and Constitution of the United States as it's been articulated. And I think for me to have abandoned by responsibility as the attorney general of the state, would have been to set myself outside the system at that time, just as much as it would be for me to set myself outside the system if I were to break my word and not defend the law that I would be sworn to uphold and defend it if I am honored with the confirmation by the United States Senate.
LEAHY: I would note that the chair, at the request of the nominee, extended -- more than doubled the time so that he could have an interrupted answer, and he had it. I would hope that we might follow the example -- I'm always of a hopeful nature -- that we could follow the example of Senator Hatch and myself, who stayed within seconds of our time.
I turn to the distinguished soon to be president pro tem, Senator Thurmond.
SEN. STROM THURMOND (R), SOUTH CAROLINA: Senator Ashcroft, I want to congratulate on the tremendous support and endorsements you have received. For example, I noticed that you were endorsed by the National Association of Korean-Americans.
Also the largest grassroots Jewish group in America, has urged the committee, in a letter to Senator Hatch, to confirm you. They wrote -- and I quote -- "We know John Ashcroft to be a man of honesty and integrity, not only in regard to his personal and professional duties, but also in a broader, more profound sense."
What stronger endorsement can anyone get than that? I think that's special. I think you're honest, I think you're capable, and I think you're courageous. And I expect to vote for you.
ASHCROFT: Thank you, sir. I'm very pleased.
LEAHY: Senator Kohl? SEN. HERB KOHL (D), WISCONSIN: Thank you very much.
Senator Ashcroft, the recent revelations about Firestone tires and tread separation have generated tremendous concern throughout the country about tire safety. I'm sure you share in the distress about the defective tires and the efficiency of the recall.
I wonder whether you share my concern that evidence of the defective tires was kept hidden for far too long through legal settlements that gagged the disclosure of the information vital to the safety of the driving public.
In product defective cases like Firestone, corporate defendants often ask plaintiffs to accept secrecy agreements as part of a settlement. Sometimes these orders serve a legitimate purpose, for example, keeping a trade secret confidential. But all too often, these agreements simply hide vital information that could potentially affect the lives of many, many thousands of people and certainly general public health and safety.
The Sunshine in Litigation Act would compel judges to consider the impact on public health and safety before accepting secrecy orders. Since the Firestone cases, this legislation is necessary, I believe now more than ever.
At a hearing before this committee in 1995, I asked respected attorney Ted Olson about this bill. You probably know him as the man who argued the election case for President-elect Bush before the Supreme Court. Mr. Olson agreed with me, saying, and I quote, "It is the public's business that is taking place before the courts. And there ought to be an awfully good reason before the courts are used as an instrument and the public cannot know what is going on."
I ask you, do you agree with Mr. Olson on this issue? And as the nation's top litigator, would you sign off on a Justice Department settlement that concealed information vital to the health and safety of the American public?
ASHCROFT: I believe, if I understand Mr. Olson correctly, that I do agree with him. I think unnecessarily hiding or otherwise concealing from the public those kinds of things would be against the interests of the people. I think I would have to consider each case on its individual merits, but I think there's great danger in not providing public information.
As related to the Firestone tire case, I was active following that because I don't think we have a good enough clearinghouse for providing information about recalls. And I would hope that the United States could find a way to take a lead in providing -- if nothing more than a clearinghouse so that we could know when problems have emerged with products anywhere in the world.
KOHL: The recalls are one thing, but we're talking about judges who allow companies to sign settlements with people who sue that give them money in return for gagging the settlement, and as a result, defective products continue to be sold. Doesn't that strike you as being the wrong thing to do in the United States? And wouldn't you agree that judges should at least consider -- which is all this litigation, this court...
KOHL: ... just consider the impact on public health and safety before they agree to a gag order?
KOHL: One more, child safety locks. You've consistently voted against gun safety proposals, including the moderate child safety lock amendment that Senator Hatch and I wrote. You argued that we need to enforce the current gun laws rather than pass new ones. The Senate and the House passed child safety lock provision overwhelmingly, and polls consistently show that about 80 percent of the American public agrees that we should sell all handguns along with a child safety lock.
Now everyone agrees that we need to enforce the current laws as a part of comprehensive gun safety strategy. Unfortunately, no matter how many prosecutors we have, 10,000 children a year will still be involved in accidental shootings unless we make it virtually impossible or very difficult for children to fire the guns.
And so I ask you, would you be willing to reconsider? Would you be willing to consider whether or not its legitimate, along with a handgun, to see to it that a child safety lock is sold? To put it to you another way: What would you have against it?
ASHCROFT: Thank you, Senator Kohl. Let me try and answer this very quickly.
I do support the Second Amendment and the right to bear arms for citizens. But as I indicated earlier, there are things that are within the range of that that can be done. And I don't think, for instance, child safety locks offend the Constitution of the United States.
The president-elect has expressed himself in favor of a program for providing child safety locks. I'd be very happy to advance that interest of his and to work with you in terms of improving our performance there.
KOHL: Yes, but that falls just a little short -- and then my last question because my time has run out -- that falls somewhat short to see to it that every handgun that's sold has a child safety lock; whether it's free or whether they pay for it is another question. But I'm suggesting that it makes common sense, and I'm asking you your opinion.
It's common sense, along with a person who buys a handgun, should also have a child safety lock. There's no requirement that they have to use it. That's not written into this law.
If they don't want to use it, they don't use it. But shouldn't we, in the interest of our children, see to it that when a handgun is sold, a child safety lock accompanies that handgun?
ASHCROFT: It is my understanding that the president-elect of the United States would support legislation requiring child safety locks and then supporting the provision of child safety locks with that requirement. And I would be happy to participate with the president in achieving that objective.
KOHL: I thank you.
ASHCROFT: Thank you.
LEAHY: The senior senator from Pennsylvania.
SEN. ARLEN SPECTER (R), PENNSYLVANIA: Thank you, Mr. Chairman.
Picking up on what Senator Kohl has said, the business about disclosing those agreements about product liability cases is very much, in my view, in the public interest. As I recollect it, we had a vote on an amendment offered by Senator Kohl which passed, and then the bill was taken down. And I would urge you to take a look at Senator Kohl's recommendation.
ASHCROFT: I would be happy to do so.
SPECTER: When you take a look at Firestone and Ford and the kind of conduct that they engaged in, there was a reckless disregard for the safety of people who died; more than 100 people died. And legislation has now been enacted which provides for criminal penalties for failure to report those defects which will come squarely under the administration of a vigorous U.S. attorney general, which is something you ought to take a hard look at if confirmed.
Let me move back to the question of independent counsel, which I only had a very brief time on time yielded by Senator Smith, and I'm not sure it can be handled even within a five-minute time interval. But I raised the issue of having review of what the attorney general does.
Now, whether it is by statute, like the independent counsel statute, or whether it is by regulation, as a special prosecutor has been denominated by Department of Justice regulation, there is, it seems to me, an urgent need for at least congressional oversight when the attorney general makes a ruling which is so much at variance with the facts and what others have recommended.
On the issue of independent counsel, Charles LaBella recommended it, Bob Conrad recommended it, Bob Litt recommended it, FBI Director Louis Freeh recommended it. We came down in hearings and there were clear issues of law. For example, on a critical question as to whether hard or soft money was being raised, there was a memorandum in the file which referred to hard money as evidence, and the attorney general testified that she would not consider it because the witness didn't remember.
But that missed the legal distinction between prior recollection recorded, which is solid evidence, as opposed to present recollection refreshed.
I see Senator Ashcroft nodding in the affirmative.
Now, there simply has to be some remedy. And there is a lot of litigation which says that a taxpayer can't come into court and seek redress, but where you have the Judiciary Committee and the Judiciary Committee of both Houses has been singled out as a party withstanding under the old statute where a request could be made that the attorney general had to respond to, not for appeals, but had to respond to. And in order to give the minority standing, it said if there was a majority of the minority on either committee. And the same applied to the majority, a majority of the majority. Not every senator in either party had to agree to give standing.
And it seems to me that you just don't have the rule of law if on something as critical as a conflict of interest. And there is no division of view as to whether you need some remedy; somebody outside the department, if a ranking official, without getting involved in defining who that should be, and you have the special prosecutor by regulation.
Now, it is true, as you said, they are sensitive matters between the executive and judicial branches. And then you said, "Well, executive and legislative branches." Conflicts all around. And there are constitutional issues.
But I would urge you to take a look at it. And I know you have a deep regard for congressional oversight. Now, you may have a little different view as attorney general, but as a senator, about the kind of oversight.
But I would like your response as to whether -- and I'll ask you a leading question. Don't you think that the attorney general of the United States, on matters of that importance, ought to have a judgment reviewable by someone and initiated by an entity with standing, like the Judiciary Committee, and reviewable in court? What about it Senator Ashcroft?
ASHCROFT: Well, I, first of all, greatly respect your understanding of this issue. I don't know of anyone who's devoted more time and energy to it or thought to it. And you've done it from the prospective of a prosecutor, which I think is the basic role you would assign to the Justice Department in this setting.
SPECTER: And a senator.
ASHCROFT: And a senator. So, you've understood both sides in ways that I haven't. I would be very pleased to confer with you and to work toward greater accountability. Now, for -- in those settings.
I would also say to you that I would hope that I would be able to work with this committee. I enjoyed this committee greatly when I had the privilege of working with it as a member. And as the first attorney general, if I am confirmed, to serve from this committee in a long time in that office, I would hope that we would work together in order to resolve these differences in a context that would also protect the, kind of, flow of information that has to exist in a prosecutorial operation.
I offer myself fully to confer with you about that and to find a way to resolve these issues.
SPECTER: Thank you.
LEAHY: The senator from Wisconsin, Senator Feingold.
SEN. RUSS FEINGOLD (D), WISCONSIN: Thank you, Mr. Chairman.
Senator Ashcroft, I believe Senator Leahy touched on this a few minutes ago, but I know that you have strongly held views on gays and homosexuality. You and I have had discussions about this, and in a 1998 appearance on CBS' "Face the Nation," you said, "I believe the Bible calls it a sin, and that's what defines sin for me."
Now, following on Senator Leahy's question, one of the great successes of the civil rights struggle of the 1960s was the enactment of federal law prohibiting discrimination in employment on the basis of race, national origin, religion or gender. And in 1996, Attorney General Reno implemented a policy at the Justice Department that prohibits discrimination in employment on the basis of the employee's sexual orientation, as well as race, gender, religion and disability.
If confirmed as attorney general, would you continue and enforce this policy of nondiscrimination based on sexual orientation?
ASHCROFT: As attorney general, I will not make sexual orientation a matter to be considered in hiring or firing, for that matter.
FEINGOLD: So you will continue that policy?
ASHCROFT: Yes, I will. I, as state auditor of Missouri, did not, as attorney general of Missouri, did not. I did not as governor of Missouri, nor did I as a member of the Senate. I would continue the policy, executive order or not.
FEINGOLD: Thank you, Senator.
Will you permit DOJ Pride, a voluntary organization of gay, lesbian and bisexual DOJ employees, to continue to use Justice Department facilities on the same basis as other voluntary employee groups or other minority Justice Department employees?
ASHCROFT: It would be my intention not to discriminate against any group that appropriately constituted in the Department of Justice.
FEINGOLD: Thank you.
Attorney General Reno clarified that sexual orientation should not be a factor for FBI security clearances. As attorney general would you continue and enforce this policy?
ASHCROFT: I have not had a chance to review the basis for the FBI standard and I am not familiar with it. I would evaluate it based upon conferring with the officials in the bureau.
FEINGOLD: Respect that and hope it will be -- conclusion will be consistent with your earlier answers.
Let me switch to a topic that's already been covered in part, the so-called Southern Partisan Article. I want to return to the question that Senator Biden asked about the interview you gave.
I understand that you told Senator Biden that when you gave that interview you didn't know much about it, that it was a telephone interview, and you give lots of interviews. And I certainly understand that, as somebody that's given a lot of interviews. And Senator Brownback indicated that as well.
The fact that you did an interview with a magazine doesn't mean that you subscribe to its views. But if you didn't know much about the publication, how could you praise it in such glowing terms in the interview? I mean, how could you say, "Your magazine always helps set the record straight"?
ASHCROFT: Well, I was told that they were involved in a group that opposed revisionism. I had recently finished reading a book published by a fellow named Thomas West from the Claremont Institute about the founders of our country and the revisionist history. Individuals who set up the interview said, "These folks are interested in history." It was presented to me as a history journal, and on that basis I made the remarks.
FEINGOLD: Thank you.
Let me switch to one other area. Yesterday, a number of people mentioned an attorney general opinion that said there was no basis in Missouri law to allow the distribution of religious literature in the public schools. And at one point you said something that struck me, and I want to make sure I understood it.
I believe you said that the Missouri Constitution was more clear with regard to the principle of separation of church and state than the federal Constitution. Do you have any doubt that the First Amendment of the Bill of Rights of our Constitution requires a separation between church and state?
ASHCROFT: No, I don't. But I would just say that for things that had been approved by the United States Supreme Court, like transportation to religious schools and all, had been approved under the federal Constitution, that was more explicitly defined out of the potential in the Missouri Constitution, so that the interpretation of the Missouri Constitution had been a more durable barrier in this setting.
And I think I expressed that, because there are a number of things which have been ruled acceptable under the law of the United States of America that are not acceptable under the laws and constitution expressed in the...
FEINGOLD: But you don't consider the First Amendment vague on the point of the separation of church and state.
ASHCROFT: No, I don't. And I think the courts have construed it. And my point was that as the courts have construed it, the courts have said things are OK in the federal setting that aren't OK in the Missouri setting, so I had to go beyond the federal law to go and read the law that I was charged to read in the setting of the state constitution.
FEINGOLD: I thank you for that clarification. I think my time's up.
Thank you, Mr. Chairman.
LEAHY: The senator from Arizona.
SEN. JON KYL (R), ARIZONA: Thank you, Mr. Chairman. I think I'll just be very brief.
I'll make this comment: It's difficult for us in this setting, I think, to really be able to evaluate things which we can't possibly anticipate. Some of my colleagues on the panel here have concerns that Senator Ashcroft, as attorney general, would try to change the law. Senator Kennedy referred to this a moment ago. And certainly, based upon his firm advocacy in the past, it's a reasonable sentiment to hold.
Senator Ashcroft, on the other hand, is in the unfortunate position almost of having to prove a negative, to prove that, no, he won't do anything improper. Well, it's hard to prove that you're not going to do something improper in the future. He's basically said, "Give me a chance and I'll show you."
It is also true that we're talking to some extent about shades of gray here. It is not the case that there is something called "the law," and that's all there is to is, and everybody knows exactly what it is, and it's always clear to the attorney general exactly what to do as a result of that.
The attorney general will have to make decisions. And as Senator Ashcroft pointed out, when he was attorney general there were some questions at the periphery of the settled law. Well, we know what Roe v. Wade is, but can you require parental consent, for example. That's a new question, so it has to be litigated.
And I think that those of us on the side of supporting Senator Ashcroft have to acknowledge that there will be those kinds of situations and that there will be areas for judgment.
And I also think that some of our friends who have some skepticism about what Senator Ashcroft should do, should also then consider the fact that a lot of these policy issues will be informed by the position of the new president of the United States. I think we can all make our judgments about how aggressive he will be to move in certain areas. But I urge my colleagues to at least consider that element of the policy choices that the attorney general will make. And I also urge them to consider the integrity of the nominee and his strong commitment to keep his word.
So I guess what I would caution here is that both people who are skeptical of Senator Ashcroft and those who are his adherents here probably both overstate the case a little bit to make the political point. In many respects we can't know. And that then raises the question, what's the default position?
And, Senator Ashcroft, I get back to something you said at the very close of your opening statement. You can't prove to us that you will satisfy every one of us. Some of my colleagues are pretty pleasantly surprised, I must confess, that you've been so willing to agree to enforce laws that you haven't always agreed with. And so the real question is, at the end of the day, what will persuade them that they can trust you? And I'd like to have you comment on that very briefly.
In my own case, what you said at the conclusion of your opening remarks is very persuasive and that is that you take your oath of office very, very seriously. And you've also noted, a couple of times, you're going to be very available to us in the future. And since you know us and we know you, I suspect you know how well you'll be treated if you went outside the bounds of some of the commitments that you've made.
So, I just wondered if you'd like to comment on that to try to add to the assurances that you've already given the members of this committee.
ASHCROFT: I thank the senator. I really believe my record is a record of operating to enforce the law as attorney.
THURMOND: Speak in the loudspeaker.
ASHCROFT: Thank you, Senator.
LEAHY: Towards the machine.
ASHCROFT: I believe my record demonstrates my willingness to enforce the law, and that's why I was so eager to clarify my position when Senator Kennedy asked me about the school cases.
There is a difference, though, that I would site. And I think it's important that the state attorney general is an elected official who makes final decisions on policy on his own. When the governor of the state...
SEN. CHARLES SCHUMER (D), NEW YORK: ... traps in any way. As you know, there is an ongoing Civil Rights Department investigation of Voting Rights Act violation that might have occurred in Florida. As attorney general, would you allow that investigation to continue?
ASHCROFT: I will investigate any alleged voting rights violation that has credible evidence. And I am not familiar with the evidence in the case, but that would be the standard I would apply. I have no reason not to go forward, and would not go forward for any reason other than a conclusion that there wasn't credible evidence to pursue the case.
SCHUMER: The next one just also quickly, in just a little elaboration, you had mentioned that on the matter of sexual orientation you never discriminated in your various offices in terms of hiring. But you were one of a minority of senators who refused to sign a statement that you wouldn't discriminate when you were a senator. Can you explain the seeming disparity?
ASHCROFT: I've never discriminated. I don't have any recollection about this statement, and frankly, I'd have to answer, "I don't know," or invent an answer. And I don't have any recollection of that.
SCHUMER: OK, but we could take it, given your previous statements, that you would fully enforce the Hate Crimes Act?
ASHCROFT: I would fully the Hate Crimes Act were it to be passed, and...
SCHUMER: A few acts of the Statistics Act has been passed already. I was the author on it.
ASHCROFT: All right, yes, sir.
SCHUMER: You would. OK, and what would be your attitude towards the Hate Crimes Protection Act next year? Would you urge that we pass it, not pass it?
ASHCROFT: From what I know about the act now, I believe it to be constitutional. I would defend it if it were to be enacted by the Congress and passed by the president.
SCHUMER: How about in the advocacy role?
ASHCROFT: I would have to confer with the president, obviously, before I endorsed any specific legislation.
SCHUMER: But you wouldn't urge him to veto it on any constitutional or legal or moral basis?
ASHCROFT: Based on what I know now, I would not.
SCHUMER: OK. Now, I'd like to just pursue a little further your follow-up, initially, to my questions earlier this morning. And Senator Kennedy had mentioned them, and then you began to clarify.
I think what you were saying -- and I'm just trying to clarify here -- is that on the issue of choice, that when you were in the Missouri state government, you thought it was your right and certainly not unconstitutional to challenge and change the law.
But as United States attorney general that, because the Supreme Court has rule and recently in the Stenberg case said, "This is settled law" -- something you just -- that was your words... ASHCROFT: That's regarding the denial of cert of that specific assault challenge on Stenberg.
SCHUMER: ... that you would not -- and I just want to get this clear -- that you would not urge the solicitor general in any way to join suits to try and change those rulings; is that correct? That's what said to me earlier this morning...
ASHCROFT: I stand by my answer from this morning.
SCHUMER: Thank you. Let me ask you this, then. Let us say people in the Senate and in the House try to introduce a statute that was identical or very similar -- nearly identical -- for all material purposes identical to the statute where the Supreme Court denied cert in the Nebraska case. Would you urge the president -- a little step further, but the same basic reasoning -- would you urge the president to veto it because it is unconstitutional based on the very same ruling the Nebraska case, in the Stenberg case?
ASHCROFT: Let me understand what you're saying, that if the Congress were to seek to do in exact language what the state of Nebraska did, what would my advice be to the president?
SCHUMER: Correct. It passed both Houses. He has to sign it or veto it.
ASHCROFT: The president, when he announced his appointment of me, asked me not to share advice with the public that I would be asked by him. I would tell you this: that I would give him my best judgment as to what the law is. It would not be a result-oriented judgment. I have promised him that I would tell him the law. And I don't think it takes, when you have an on-point case, I think that's pretty clear what that advice would be.
SCHUMER: And I'd just like you to say it, because it's not contradictory to what happened before. This is settled law in your judgment, settled law enough so that the solicitor general would not -- you would not urge him to overturn it.
Why wouldn't the same -- I'm not asking your advice to the president, I understand the difference there and respect it. But we're talking about the role that you have talked about quite well as implementer of the law and definer of constitutionality. This is not a moral issue, this is not an ideological issue; this is a constitutional issue, where it's extremely important for the attorney general to enforce the law, something you have repeated regularly today and yesterday.
Why wouldn't you just be able to tell us here? This is not a question of your private conversations about statutory or ideological views with the president. Why couldn't you say that, "The law's unconstitutional and the president should veto it"?
ASHCROFT: I would give the president my best estimate of the law. I think it's very clear that the Supreme Court has ruled on that particular law. The only change that could be made is if the federal government and its Congress had authority to do something that the state of Nebraska didn't do.
ASHCROFT: I don't have -- haven't considered that fully.
SCHUMER: But the Supreme Court's ruling was a federal ruling, sir.
ASHCROFT: Yes, it was, but...
SCHUMER: It was not based on state -- Nebraska law. It was based on the right of -- it was based on the federal right of privacy in the -- as the Supreme Court has defined the Constitution and as you recently told us is settled law.
I mean, this is an important issue, and some of us don't want to be unsettled that you have said this and are now, sort of, taking it back a little bit.
ASHCROFT: I'm not taking it back, sir. I will give my best judgment as to what the law is to the president whenever he asks me for legal advice. And that will be very clear. And the Nebraska statute was ruled unconstitutional and I will tell the president that.
SCHUMER: And that the -- excuse me, just -- and that the same law that passed by the House and Senate is unconstitutional as well. The same exact law using the same federal ruling. What would prevent you from saying that if you -- and I believe you have, if you truly believed what you told us before? There's no difference.
ASHCROFT: Well, nothing prevents me from saying it. And I believe the Nebraska law has been clearly ruled unconstitutional. And if you're asking for my personal view, I don't know of any reason why the federal Congress would be allowed to do what the state governments were forbidden to do.
SCHUMER: You would tell the president it's unconstitutional.
ASHCROFT: I would tell him that I don't know of any reason the federal government has the authority to do what the state constitution -- state group couldn't do, that was ruled unconstitutional at the state level. And it would -- I guess I would have to say, I would expect the same to be the result from the federal level.
SCHUMER: Thank you.
Thank you for your indulgence of a little extra time, Mr. Chairman.
LEAHY: Thank you. And I will certainly offer the senator from Ohio the same amount of extra time.
Senator from Ohio?
SEN. MIKE DEWINE (R), OHIO: Mr. Chairman, thank you very much. Senator Ashcroft, thank you.
In examining your record as Missouri attorney general, it's clear that you had as part of your agenda the whole issue of consumer rights. You attacked pyramid schemes. You sued oil companies, charging them with restraint of trade. You had one case where you sued a company that was selling fraudulent franchises. They were claiming that they were helping disabled -- many, many cases.
I wonder if, as you define the job of attorney general and you look at your role as U.S. attorney general, you believe that that is also part of your mission, part of your agenda, as far as protection of consumers and consumer issues?
ASHCROFT: I thank the senator from Ohio.
As attorney general, I had a portfolio of consumer protection, and I ended up suing everybody from the oil companies, when they were either selling contaminated gasoline, or when they were price-fixing gasoline; remember cases like that. I sued the pyramid schemes because they were just a means of defrauding individuals. And I had the opportunity to sue people for fraudulent franchises and distributorships and all kinds of things like that.
I don't know if the portfolio of the Justice Department is quite as extensive when it comes to consumer protection. I enjoyed that part of my responsibility and my job.
And I also got involved in some things nationally that I thought were important for consumers. One thing that I have dealt with years and years later now here in the Congress, while I was a member of the Senate, was copyright laws regarding television and other programs.
I sued as an amicus in the Sony Corporation v. Universal City Studios, which allowed people to tape-record television programs if they couldn't be home at the time the program was on so that they could later see it.
But I think that I'll do what I can to try and help consumers in settings, but I believe the Federal Trade Commission and other agencies of the government have the lion's share of consumer protection. And I'd be happy to learn if I could be involved in that arena, but my opportunity, I doubt, would be quite as extensive as it was when I was attorney general.
DEWINE: Senator, thank you very much.
Mr. Chairman, thank you.
LEAHY: Senator Durbin?
DURBIN: Thank you very much.
Senator Ashcroft, to follow up on Senator Schumer's question, for several years now we have been debating the so-called partial birth abortion ban on the floor of the United States Senate. And many of us have argued that, if it included a health exception for the woman involved, that we could support it.
And Mr. Santorum from Pennsylvania has adamantly stuck to his position that it should not include a health protection. Now, the Stenberg v. Carhart decision, which has been the subject of this debate, really says that Casey gives us no choice. Casey case, which you referred to in your opening statement, made it clear that you had to include a health exception.
And I want to make it clear in my mind that the Santorum bill, which has been debated and voted on in the House, and the Senate now, based on what you've said today and what we understand Stenberg and Carhart to say, clearly would be unconstitutional and that it does not meet the test, in Stenberg v. Carhart, of providing for protection for the health of the woman.
ASHCROFT: If legislation regarding partial birth abortion is passed by the United States Senate, I will ask department lawyers to assemble the best assessment of that legislation and evaluate its pluses and minuses and its likelihood of constitutionality. And I would advise the president of that. If it is arguably constitutional, I would defend it, because I think that's the responsibility of an attorney general.
I think it is important to be able to advise the president confidentially, because you might find yourself in a setting where you advise the president that something is unconstitutional, but he decides to sign it. And because it is arguably constitutional, but maybe not going to be constitutional, you go in to defend it.
Now, if you have advised the president publicly that this is probably unconstitutional, but it could be constitutional and then he signs it and you have to go defend it, you've cut the legs out from under your ability to effectively sustain the enactment or argue for its sustenance in the course. So...
DURBIN: Senator, this element of protecting the health of the women is clearly the decision made in Stenberg v. Carhart based on Casey, a case which you, yesterday, said in your opening statement was settled law of the land. It is not a question of constitutionality if it is settled law of the land in your mind. And how then could you have any question, as you sit there, and say, "Well, maybe Stenberg really didn't say the health of the women"? It was based on Casey and it related to protecting the health of the women. And Santorum, which we've considered in the Senate for years now, does not include that protection.
I can't think of a clearer illustration of your earlier statement where you said the administration is not going to set out to overturn Roe v. Wade, and that you were committed to the settled law of Roe v. Wade and Casey.
ASHCROFT: I am and I would advise the administration, in regard to any legislation that it was considering that I considered Casey and Roe v. Wade and Stenberg to be settled law. And in evaluating any proposed enactment or any enactment which came for signature to the president, I would advise them with that understanding. It's possible -- the number of permutations in legislation, as we all know, is infinite.
And I would give my best advice to the president. I would give it to him privately, because if he signed something, it would be my responsibility to defend it and seek to defend it and harmonize it with those cases.
Now, I just think that's one of the places where you have a situation that tells you why you should advise confidentially to the president, because some advice about constitutionality, if it were 51- 49 constitutional, this may not be the case, is that I really think this is unconstitutional, but you were wrong about that and you could later defend it, you'd have a responsibility to do so. So I would like to protect that option.
DURBIN: If I might ask an unrelated question. If you are confirmed as attorney general of the United States of America, would you appear at Bob Jones University?
ASHCROFT: My appearances at a variety of places depend on what I think there is to be achieved and accomplished. When I get an invitation, I have to ask myself, why is this invitation here? What can I support by responding to the invitation? What will be the consequence of my response?
I will tell you that I understand, having been a participant in these hearings and the prelude to these hearings, that the attorney general is a person who needs to exercise care -- greater care, I think, than a senator does. I reject any racial intolerance or religious intolerance that has been associated with or is associated with that institution or other institutions, and I would exercise care not to send the wrong message. And I think that's the basis upon which I'd make decisions about going from one place or to another.
DURBIN: But even in light of President-elect George Bush's letter to the late Cardinal O'Connor and the obvious embarrassment he felt when he learned of the anti-Catholic and some racial comments that were made by the leaders of that university, you would not rule out, as attorney general of the United States, appearing at that same school?
ASHCROFT: Well, let me just say this, I'll speak at places where I believe I can unite people and move them in the right direction. And my church allows women as ministers; the Catholic Church doesn't. My grandmother happened to have been an ordained minister.
I'll go to a Catholic church and speak. It's discrimination against a woman from one perspective, but I'm not in the business of trying to find things in one faith setting that make it impossible for me to be there. I want to be there to try and promote unity.
There are other different faiths that have different aspects of their beliefs. I mean, some churches will forbid me to take communion. My church invites people to take communion if they feel like they want to. But I don't discriminate against going and doing things that I -- if they invite me to come and do something that's helpful and therapeutic and will unite people and not divide them, I want to reserve the ability to do that.
And I'm grateful for the friends who tolerate me by inviting me. Frankly, I want to focus my energy and effort to unite rather than divide and to find things of mutual respect, rather than to fine things that I can pick at or otherwise challenge.
But I want to make it very clear that I reject racial and religious intolerance, and I reject any current or prior policies of those. I do not endorse them by having made an appearance in any faith or any congregation. Those who prefer not to allow women in certain roles, I don't endorse that when I go there. Nor do I endorse any racial or other intolerance at other places when I make appearances.
LEAHY: So are you equating Bob Jones with the Catholic Church, Senator?
ASHCROFT: Obviously not, and I thank you for clarifying that. Throughout this hearing you have helped me clarify things that were important.
LEAHY: The senator from Alabama?
SESSIONS: Well, Mr. Chairman, I think that would have been better left unsaid. I don't think that was a fair summation of his remarks. We've got to treat people here with fairness, in context.
You take anything people say out of context, you can make people look bad.
LEAHY: As the senator addressed that to me, I'll respond. I gave Senator Ashcroft a chance so that he would not leave that implication. I think I understood what he meant. I though that my question to Senator Ashcroft -- and in his response he saw it the same way -- was done as helpful to him.
SESSIONS: Well, if that was the spirit, I'll apologize for my error.
I do notice that, as Senator Ashcroft said some time ago, these positions of Bob Jones University, I reject categorically. I reject the anti-Catholic position of Bob Jones University categorically.
Bob Jones University is a narrow university with many views I do not agree with, not consistent with my faith. But, frankly, some good things have been happening. The ban on interracial dating as a result of this hoopla and the political visits, attention has changed. They also have softened, apparently, their statements about the Catholic Church saying they do not hate them, but love them. And so I think, maybe, these things have been healthy, maybe it's been healthy to have that. To say you'll never go somewhere I'm not sure is right.
On the partial birth abortion question, I think Senator Durbin opposed the vote we had, but 64 senators, as I recall, a bipartisan group, voted in favor of the partial birth abortion amendment that was in the Senate. And two-thirds of the American people favor that. Eighty-six percent, according to the April 2000 Gallop poll, oppose abortions in the third trimester, and according to a conversation I had with Senator Boxer, there may be some ways that we can develop some bipartisan progress on that.
But I think we need to realize that the American people are not comfortable with unlimited abortion in this country, and I, for one, do not condemn a person like Senator Ashcroft, who is troubled by the ease and the blaseness we have about this most serious matter.
Senator Ashcroft, you talked about the role of attorney general. I served as Alabama's attorney general. Is anybody else but the attorney general that represents the state of Missouri but the attorney general?
ASHCROFT: Well, in the courts, the attorney general represents the interest of the state.
SESSIONS: You speak for the legal interest for the state.
ASHCROFT: Yes. Now, there are some agencies that have their own counsel. But most of the time, say the Board of Healing Arts, if there's a dispute between whether doctors can prescribe medicine or some other group, the state frequently, or the position of the attorney general resolves those by attorney general's opinions, or if someone sues, the position of the board or the state is defended by the attorney general.
SESSIONS: Well, I guess I'm -- I've had personal experience with the kind of proposed consent decrees that have been talked about and you've been criticized about here today.
It's only the attorney general that represents the state and it's only the attorney general that can bind the state in a court of law on a consent decree. Isn't that basically correct, or have I overstated that in some fashion?
ASHCROFT: Oh, I think in general that correctly states the law.
SESSIONS: I think that's...
ASHCROFT: But you know, it's been a while since I was attorney general.
ASHCROFT: In 1984 I ceased that role.
SESSIONS: So the point -- so -- well, I had this -- I've been through this problem. I've been through the problem where plaintiffs sue school board, mental health system, prison system. And the people who get sued, they want more money for what they want in their programs. They want more money. So they go in and say, "Well, let's settle and we'll have the state pay for this and get a federal judge to order us. If we can just get a federal judge to say that the mental patients' not being treated well enough, the prisoners are not being treated well enough, the school system's not being treated well enough, then we can go tell the legislators who won't give us more money that the federal court ordered it."
This is a systemic problem in America that attorney generals have to deal with. And it's difficult to go in and say no.
I've had to do it. My predecessor agreed to a settlement I could not believe that altered the way Supreme Court justices were to be elected. And I took -- when I was elected, I switched sides and reversed it in the 11th Circuit Court of Appeals. Had I not been elected, the Alabama Constitution would have been altered because the attorney general, in my view, didn't defend the state. He did what was -- perhaps people wanted, but really not that.
But -- is my time out? I guess it is. Mr. Chairman, I apologize. I think there are times when an attorney general represents the state, he has an obligation and duty, regardless of what the parties to a litigation may say, to ensure that it's fair for all the people of the state. I think you did that. That's why Jay Nixon, who I knew and served with, a Democrat attorney general after you, did the same thing.
And I also would note for the record that Senator Kennedy and Tom Harkin had fund-raisers for Jay Nixon while he was taking this very position.
SESSIONS: And apparently it's the problem of whether you've got a "D" or an "R" after your name, whether that's worthy of criticism.
My time is up.
LEAHY: The senator from Alabama is finished?
The distinguished senior senator from California?
SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Thank you very much, Mr. Chairman.
Senator Ashcroft, let me just qualify Senator Durbin's question and ask it another way. You are now confirmed as attorney general. In six months, you receive an invitation from Bob Jones University. You now know about Bob Jones University. Do you accept that invitation?
ASHCROFT: Well, it depends on what the position of the university is; what the reason for the invitation is. It depends on what I might be able to achieve. They have abandoned the policy on interracial dating which was offensive. Their web site, which I wasn't aware of when I went there, if it still had the anti-Catholic aspects, I would be loath to go back.
I would hope that they would approach things differently. And I don't want to rule out that I would ever accept any invitation there, because I think I would hope that they would make what I consider to be progress. They did when they abandoned the interracial dating ban which they had. And I would hope they would make other progress as well.
FEINSTEIN: Do you have reason to believe that they are no longer anti-Catholic?
ASHCROFT: No, I don't know whether they are abandoning or changing or modifying their position.
I would state this: I think it's clear. These hearings have been valuable in this respect, that I am sensitive at a higher level now than I was before, that the attorney general in particular needs to be careful about what he or she does. And I would be sensitive to accepting invitations so as to now allow a presumption to be made that I was endorsing things that would divide people instead of unite them.
FEINSTEIN: Along those lines, let me ask you another question. You were on the Foreign Relations Committee, and Jim Hormel, a person whom I happen to know very well -- he comes from my city. I've known him for many, many years -- was up for ambassador to Luxembourg.
You voted against him at the time, saying, "because he engaged in a gay lifestyle."
My question to you is, would someone be denied employment by you or not be selected by you for a top position in the Justice Department if they happen to employ a gay lifestyle?
ASHCROFT: No, they would not be denied. I have never used sexual orientation as a matter of qualification or disqualification in my offices. I have had individuals whose situation became apparent to me, sometimes tragically, that worked for me, and I have not made that a criterion for employment or unemployment in my office and would not do so.
I will hire as if that is not an issue, and it is not. And whether or not the executive order would be in effect or not, that's my practice and has been in all the offices in which I have conducted myself since I got into politics, and that began in January of 1973.
FEINSTEIN: Thank you.
If I might ask you a question about the Hyde amendment, now law. The amendment requires states to fund abortions for women who rely on Medicaid and who choose that option if the pregnancy is a result of rape or incest, or if it threatens the woman's life. The amendment attempts to ensure that poor women with the consequences of rape or incest have the service and are not disadvantaged because of their economic status.
It's my understanding that at least two states are not in compliance with the Hyde amendment. What action, as attorney general, would you take?
ASHCROFT: First of all, I voted for the Hyde amendment on several occasions. I don't really know what enforcement actions there are, whether they're taken through the attorney general's office or whether they're taken through some other agency of the government, but I would seek to enforce the law. I'm just not sure what the enforcement action is that's appropriate in that setting. I don't know whether HHS has a way of dealing with that or not.
FEINSTEIN: I wanted, for a moment, to talk about another past position and this has to do with felons obtaining weapons. The National Rifle Association has consistently supported enabling felons to restore their privilege to purchase firearms. Both through taxpayer funding for a, quote, "relief from disability," end quote, program and lawsuits. Many in law enforcement have serious concerns about enabling convicted felons to possess guns.
In 1999, you voted for an amendment to the juvenile justice bill that would have required the FBI to create a database to identify felons who have been granted relief. Rather than establishing a national database, my question is, why don't we just prevent felons from getting guns in the first place? As attorney general, would you support felons obtaining this so-called relief from disability so they could buy guns despite their felony convictions?
ASHCROFT: Thank you, senator. The restoration of gun rights is not a Justice Department function under the law now. It's a Treasury Department function so -- and I know Senator Durbin, I think, was instrumental in -- maybe I'm wrong about that, I thought you made sure that wasn't funded. Pardon me. Pardon me, it's getting late and I'm...
FEINSTEIN: No, I understand. My question is a very simple one.
ASHCROFT: Yes, I understand that and let me address that. This is a matter of policy about which I would confer with members of the Justice Department and with also with the president of the United States in arriving at a decision.
FEINSTEIN: My point is, I think all of law enforcement believes that felons should not possess weapons and my question to you is as attorney general do you agree with that? Would you be supportive?
ASHCROFT: Keeping guns out of the hands of felons is a top priority of mine and would be as attorney general.
FEINSTEIN: So the answer is, yes, you would be supportive?
ASHCROFT: Yes, I think that's. Yes, it is.
FEINSTEIN: Now, let me ask another gun question, if I may.
LEAHY: Senator, it's time.
FEINSTEIN: Oh, it is? I apologize. Thank you very much, Mr. Chairman.
LEAHY: The senator from Kansas?
SEN. SAM BROWNBACK (R), KANSAS: Thank you, Mr. Chairman.
I think every question's been asked three or four, maybe five different ways so far. So the only thing I'd like to add at this point is, I'd like to submit to the record a letter received by the Judiciary Committee from Charles Evers. He's the brother of slain civil rights leader Medgar Evers. And this letter is in favor of the nominee of John Ashcroft for attorney general and strongly supports that. So I want to submit that into the record.
LEAHY: Without objection.
BROWNBACK: And I think that pretty well wraps up the topics.
Thank you, Mr. Chairman. I -- if my colleague, Senator Kyl, would like, I'll yield some time.
KYL: No, no I don't.
Mr. Chairman, might I just ask unanimous consent to insert into the record at this point an op-ed piece in the Arizona Republic today by the columnist Robert Robb on this subject.
LEAHY: Yes. In fact, the -- following the normal practice, the practice under both Senator Hatch and myself, the record will be available for senators as long as the hearing is going on, to submit statements of that nature. We have a number -- several senators do and it's legitimate to do it.
The senator from Kansas, that good?
BROWNBACK: That's sufficient for me.
LEAHY: Thank you.
I would also submit questions, as we have in the past, of other senators not on the committee being able to submit questions.
On behalf of the two senators from Florida, Senator Bob Graham, Senator Bill Nelson, regarding the investigations into allegations of discrimination in the November 7, 2000 election in Florida, including the use of voting devices that resulted in significantly higher numbers of minority voters' ballots being thrown out. This refers to the Civil Rights Division and the Commission of Civil Rights investigation. I would submit that and will give copies to your staff and the questions for the record.
FEINSTEIN: Mr. Chairman, may I submit some amendments -- some questions to be answered in writing?
LEAHY: Yes. And the senator from Florida -- from California may, of course.
The -- nobody else has anything to submit?
The senator from Washington state is...
KENNEDY: Mr. Chairman, I was wondering, Senator Biden had yielded the time -- if everybody's ready, I don't want to -- others have questions. But there is one. I'm wondering if I could use his time? I'll only take one minute.
LEAHY: You want to use it now? Or do you want to...
KENNEDY: Oh, I'm sorry. Excuse me. Apologize.
LEAHY: Why don't we have the senator from Washington state?
LEAHY: And the senator from Massachusetts. And then, just so that people understand, once the senator from Washington state is finished and the senator from Massachusetts, using the time of the senator from Delaware, I've discussed this with the senator from Utah, we will recess for an hour to have a -- we'll recess for dinner and return.
SEN. MARIA CANTWELL (D), WASHINGTON: Thank you, Mr. Chairman. Senator Ashcroft, thank you for your patience and fortitude.
SEN. ORRIN HATCH (R), UTAH: Excuse me, can I ask one question? Are we coming back to requestion on Senator Ashcroft or will that be it for the day?
LEAHY: Well, I've got a couple questions. I mean, I'd be happy to...
HATCH: Why don't we finish the questions...
LEAHY: I'll tell you what we'll do. We'll stay until 6:30 and break at that time, and then, it seems like a logical time, and come back at 7:30.
I give you my commitment, to the senator from Utah, to go late at night if need be to help get this done.
We can start the clock on the senator from Washington state.
CANTWELL: Thank you.
Senator Ashcroft, thank you for your patience and your fortitude. Yes, the hour is getting late, so I appreciate your attention to these issues.
If we could go back to the roadless area question that I brought up earlier, and I can go back to the record of your statement. I wasn't -- since I don't have that in front of me, I'm not clear whether you said you were unfamiliar with it or unfamiliar with where it was in the Administrative Procedures Act and the rule-making authority?
ASHCROFT: Maybe I need to be refreshed, and I'm very sorry, but I don't understand what you're talking about. CANTWELL: The roadless area policy that has now been implemented by the Administrative Procedures Act and just completed that process -- and I asked you earlier about that. And I was unclear, exactly -- I wasn't clear whether -- and I can go back to the record -- where you say you are unclear about the policy.
ASHCROFT: It's my responsibility to defend both the laws and the rules and regulations -- it's my understanding that it would be my responsibility to defend these regulations if and when they're attacked.
But I'm not familiar with them.
CANTWELL: OK. Well, you sent -- according to Mining Voice, you've sent a letter basically raising concern about the roadless area policy and the Clinton administration's, as you called it, "it appears the administration has launched an orchestrated campaign to preclude mining on the vast acreages of public lands and multiple-use lands."
FEINSTEIN: So, I understand you don't always remember everything that you...
ASHCROFT: I think that this maybe makes reference to what would be the situation in the Mark Twain National Forest in Missouri, the old lead and zinc mines, but I shouldn't speculate, frankly. It's getting late in the day.
ASHCROFT: And I don't want to do that.
FEINSTEIN: Here's why I think it's such an important issue, because you may have, again, legislatively, which we've said -- and that was numerous times today, what you've done as a senator is different as you might do as attorney general. But yet, it seems as if you raised concerns about or opposition to that policy. Now it's actually been as far, as the Administrative Procedures Act, completed. It is now law.
It may be that the president-elect opposes that policy. But you, as attorney general -- and there are court cases already now being filed in challenge to the roadless area policy that has now been implemented by the Administrative Procedures Act, so even if the president-elect is opposed to that policy, will you, as the enforcement agency underneath your office, enforce and uphold that law and defend those cases?
ASHCROFT: I will, regardless of whether or not I supported something as a senator, defend the rule. And if it is a rule with the force and effect of law, I will defend those cases.
FEINSTEIN: Even if the president might be seeking a new administrative overturn of that?
ASHCROFT: I think if the president wants to change the law, he has to follow the law in order to do so. FEINSTEIN: OK.
ASHCROFT: And I will support and enforce the law. I think that's a responsibility and I think that's what I've promised to do. I can't be result oriented; I have to be law oriented. And I think that I would disserve the president and the country were I to do otherwise.
FEINSTEIN: Thank you very much.
LEAHY: Thank you.
Senator Kennedy, who has reserved the time....
JUDY WOODRUFF, CNN ANCHOR: At the same time as we continue listening to the confirmation hearings for John Ashcroft to be attorney general, these pictures you see, the lower left of your screen, Andrews Air Force Base: the arrival in Washington of president-elect George W. Bush. You can see, among others in the greeting party there, the vice-president elect Dick Cheney and others whose back to us -- are to us. And we can't tell you who they are.
You see Laura Bush standing there with the president-elect. Earlier today, the president-elect made some farewell remarks in his home state of Texas before he got on an official government plane and made his way to Washington -- this, of course, being just a few days away from his inauguration as president of the United States.
Tomorrow: ceremonies here in Washington at the Lincoln Memorial -- that's on Thursday -- and on Friday more preparation. And, finally, Saturday at noon he will take the oath of office. I believe that is the mayor of Washington, Anthony Williams -- yes -- and his wife standing there speaking with Laura Bush. And you can see George W. Bush and Dick Cheney and Lynne Cheney speaking there at the foot of the steps leading up to one of the Air Force planes that ferry the president -- the president-elect -- around.
So now that he's in -- safely arrived in Washington, we will turn our attention back to these confirmation hearings: Senator Ted Kennedy of Massachusetts questioning John Ashcroft.
KENNEDY: ... a highly addictive drug, and reject the mass of evidence that children have been the victims of a deliberate effort by the tobacco companies to addict them to smoking at a young age.
Now, the administration has a legal action on that particular question, moving forward. It's gotten to the point where a federal judge has already examined the government -- in this case, the RICO claim -- and ruled that it can go forward as a matter of law. We're all aware of the mountain of evidence showing the tobacco industry did engage in unlawful acts. This is basically a recommendation of DOJ professionals.
Can you give us any assurance about that case? Do you intend, at this time, to withdraw it? Do you intend to carry it forward? Can you give us any indication what your disposition on that would be?
ASHCROFT: Well, let me clarify that I am no friend of the tobacco industry. I don't smoke. My family doesn't smoke. I regret the fact that smoking is very dangerous to individuals.
I have no predisposition to dismiss that suit. I would evaluate that suit, conferring with members of the Department of Justice.
I note, and hoping to learn from it, that the attorney general two years ago said that the federal government had no independent cause of action against tobacco companies, in a statement in which I think she later reversed. And I don't want to make a statement ignorant of the kinds of facts and considerations that ought to inform my judgment when I get to the Justice Department, if I have the benefit of confirmation. I don't mean to be presumptive in my statements, but I will consider it.
Is this the case where there were three causes of action, and two of them had been dismissed, but the RICO cause remains? I think I know in terms of the...
KENNEDY: That's correct. And they had said that the RICO was -- they said that first the defendants cannot possibly claim their alleged (inaudible) were isolated. The complaint described that -- well, they've upheld that. There's three different criteria for the RICO. And I won't take the time of the committee to go through the justifications, but they have met that particular requirement. The case is moving ahead.
You've taken a very strong position on the whole question of substance. I doubt if there's very many medical professionals that don't believe that tobacco is a gateway drug. And, I think that there is such an extraordinary concern, parents as well as professionals, in terms of trying to make a difference, in terms particularly youth smoking, and the targeting of the companies toward youth smoking, which is really what this has been narrowed to. I would certainly hope we would get some action on it, but I appreciate your attention to it now and we'll look forward to talk about it some more.
Thank you, Mr. Chairman.
LEAHY: Senator Hatch, do you have anything?
HATCH: No, I think our side's about wrapped up. At least I hope so, and I hope yours is, too.
LEAHY: Let me do this. I do have a couple of questions, I'll ask them and then we will break, unless somebody on your side wants to. The senator from Pennsylvania wishes to ask questions.
I'll ask a couple, we'll go the senator from Pennsylvania so that he can ask some. We will then break. The senator from Missouri, former senator from Missouri nominee -- I'm concerned about the amount of time he has to spend here. But, with all due respect, even more concerned about Mrs. Ashcroft, who's had to look at all of us.
But then, we've got to look at you, so we'll do my questions, we'll do the senator of Pennsylvania. We'll break. And during that time I would ask the senator from Utah if he would check on his side which, if any, senators will have questions. I'll do the same in our side.
Bob Jones University is not up for confirmation here. But just -- and you've spoken of a heightened awareness on some of these things because of the confirmation hearing. And you will not be surprised to know that many nominees in both Democratic and Republican administrations have said that they became more aware of some of the issues following their confirmation hearing.
But just so you understand the concern, when President-elect Bush spoke at Bob Jones University about a year ago, he then expressed for the appearance in recognition of their anti-Catholic and racially divisive views. One of your Republican colleagues who received an honorary degree from Bob Jones University, Representative Asa Hutchinson, later called the school's policies indefensible.
In March, Bob Jones made clear on national TV that he views the pope as the antichrist and both Catholicism and Mormons as cults.
My suggestion -- and you can do whatever you want -- I made my position very clear yesterday on how I feel about you on any questions of racial or religious bias. I stated that neither I nor anybody on this committee would make that claim about you.
But let me say this, of your being somewhat sensitized to this. Frankly, if I were you, with all of the information that's come out -- and some of which you may have known because there was a dispute with one of your own judicial nominees who disputed the question as to whether Bob Jones should have a tax exemption or not.
But with all that -- if I could make a recommendation to you -- I'd put that honorary degree in an envelope and send it back and say this is your strongest statement about what you feel about the policies.
But let me ask you this -- I gave your staff a speech that you made in 1997 called "On Judicial Despotism."
You characterized the Supreme Court's landmark decision in Roe v. Wade and Casey as illegitimate. You called the justices who struck down an Arkansas congressional term-limit law -- you called them "five ruffians in robes," and said that, quote, "They stole the right of self-determination from the people." And you posed the rhetorical question, quote, "Have people's lives and fortunes been relinquished to renegade judges; a rogue, contemptuous, intellectual elite fulfilling Patrick Henry's prophecy, that of turning the courts into nurseries of vice and the bane of liberty?" And you also said, "We should enlist the American people in an effort to reign in an out- of-control court."
Now, I've disagreed with the Supreme Court decisions, and I've always emphatically stated that, while I may disagree, we have to follow them. I disagreed in Gore v. Bush. I disagreed with that, but I went over with the then-chairman of the Senate Judiciary Committee, my Republican counterpart. Went to the arguments. Came back out and said, "We have to obey the law, whether we agree with it or not."
Now, the five ruffians in robes to whom you refer are members of the Rehnquist Supreme Court. That's a conservative court. Oftentimes activist, decidedly conservative. I've heard Justice Anthony Kennedy and Ruth Bader Ginsberg called a number of things, but ruffians is a little bit stronger than I've had. How do you feel about that speech today?
ASHCROFT: Well, first I'd say that I have never said that people shouldn't obey their outcomes. And inasmuch as I may be spending substantial time presenting things to the court, I think I'll be respectful to the court.
LEAHY: And would it be safe to say -- I don't want to put words in, but how do you feel about your term "ruffians in robes"? Probably one best head for the trash can.
ASHCROFT: I don't think it'll appear in any briefs.
LEAHY: Well, probably not on your side. You may find it quoted on the other side about you. But I think I understand your answer.
Senator from Pennsylvania?
SEN. ARLEN SPECTER (R), PENNSYLVANIA: Thank you, Mr. Chairman.
Senator Ashcroft, we're trying to wrap up. It's late. I want to touch on a couple of areas and urge you to give consideration to them.
SPECTER: On campaign finance, there is a memorandum of understanding between the Department of Justice and the Federal Election Commission which I have questioned the attorney general about extensively, because there are criminal penalties, and under our law, they're to be enforced by the Department of Justice. And I would urge you to take a look at that memorandum of understanding with a view to reasserting Department of Justice authority to enforce the statutes of the United States which have a penal provisions.
On the issue of espionage, I would urge you to take a very close look at the procedures which are used under the Foreign Intelligence Surveillance Act to make sure that major matters don't fall between the cracks of the investigations which are of the utmost critical nature. Some of those matters have gone directly to the attorney general and have been delegated without supervision, and major investigations have been thwarted.
With respect to international terrorism, there have been tremendous advances made by the Federal Bureau of Investigation in overseas activities, leading to some really remarkable prosecutions on extraterritorial jurisdiction, something we didn't have before 1984 and 1986 statutes were enacted. And I would urge you to take a close look there and to pursue that. On the antitrust laws, I broached that very briefly and I would urge you to take a look at areas where there can be an aggressive pursuit. And with some specificity, I would call your attention to OPEC. Just in this morning's news, they're going to curtail production in order to raise prices. And there is a very solid legal theory for proceeding against OPEC under our antitrust laws, Sherman and Clayton. And an impediment had been the Foreign Sovereign Immunities Act which prohibits law enforcement from going after acts of state. But there is an exception if there is a commercial practice, and there is an acceptable international standard available, which there is now, with an emerging international consensus that price-fixing is unlawful.
And what OPEC is doing, pure and simple, is an old- fashioned violation of the cartels in restrain of trade to keep up the prices. And Americans are being victimized there, and they really do not have sovereign immunity because of a new brand of international standard. The advances in international law are remarkable in many, many fields with the war crimes tribunal and a consensus on international law.
And I mention those to you just in passing for your attention, because it's been a long day and it'd be my hope that we would move on to other witnesses, following today's termination.
Let me ask you, as a final question, Senator Ashcroft, there have been a lot of concerns expressed -- and you've heard them all; you've heard them all and then some -- about many, many touchy subjects. And President-elect Bush has articulated a really desirable view of being a healer. And we talk about bipartisanship and about bringing American together, and that's going to be a very, very important item.
And I believe that the assurances that you have given on many items are really important. And, if confirmed, people are going to be looking at you to see that you're going to carry them out. And I would urge you to establish a dialogue with the groups which have been identified as being opposed to you, whatever the line may be -- the desegregation cases, the abortion clinics, the pro-choice issue, all of these items.
And show them the man that I know from working with you for six years in the Senate, with a sense of humor and balance and realism and integrity, and very strongly held views, but a very sharp delineation between your personal philosophy and law enforcement, which we've tried to articulate and pin down -- and I think you've made a lot of really important commitments.
So, I would ask you in a final question, what do you see that you can do in an active way to carry forward the healing that President- elect Bush talks about and give assurances on an ongoing basis to so many people who have raised these tough questions?
ASHCROFT: Well, I see the time is up. Let me just briefly say that...
LEAHY: I think the senator from Pennsylvania has asked a very good question, so certainly take the time to answer. SPECTER: Senator Ashcroft, on time, I don't think there's any time limit on you. There are time limits on us, not on you. We've seen a lot of practices around here on 10 minutes a long speech and a question at the end of the 10 minutes. So it is a common practice for senators to take all that time, but you have the time you need.
ASHCROFT: I'm delighted to respond to the question.
I'm very eager to be the attorney general for the people of the United States of America. I'm eager to talk to them. I'm eager for the Justice Department to have an elevated understanding by the public and standing with the public.
I personally feel that the Justice Department has, of necessity, been, sort of, inward focused in a lot of ways recently because of circumstances that have surrounded the executive branch of government. But I think that we can invite people to participate in fashioning and shaping and understanding a Justice Department that will be seen as a Justice Department for all the people.
I have toyed with a variety of ideas, not presuming my confirmation, but it's hard, if someone invites you to think about being the next attorney general, not to think about what you could do. And I've thought about a variety of ways to be involved with the people, with being in various cities and asking people to come and tell me what they expect from the Justice Department; being on college campuses and asking people, young people, to chat about the justice objectives for the United States of America.
Some of you I've shared these dreams with, and I've even suggested that it would be appropriate for -- in these, sort of, things outside the strict legal responsibilities we have, to participate together in. Because I think the future of America is very bright, and I would hope that we could find a way to fashion that brightness as a team effort.
So that I look forward to reaching out to people. I don't know that I will be as interest-group oriented; I want to reach out to people, not just interest groups. But I will not reject the opportunity for individuals who are associated with groups to be involved as well.
Because I think it's time for the Justice Department to be seen as an instrument of American justice for all the people, not necessarily just for the defense of the administration or the defense of the executive branch of government. And it shouldn't be something that's merely Washington-based; I think it should be something that's understood across America.
I would plan to visit -- or hope to visit early in my opportunity, if I am confirmed, virtually every jurisdiction to meet with the U.S. attorneys there.
I want them to be inspired about what the Department of Justice does. I want them to be proud of it. I want them to have a sense that there is integrity about what we do. We will operate based on principle; the kind of principle that, more eloquently than I could state, Jack Danforth, your former colleague, spoke to you about. It's the kind of thing he established in the attorney general's office in Missouri and frankly, I followed, assiduously, that example when I was there.
A culture that doesn't have a reference to the rule of law doesn't have freedom. And I believe freedom is the circumstance in which people flourish and individuals grow. My philosophy of government is government exists so that people grow. People reach the maximum of their potential -- that's what government is about.
And I'd like for the Justice Department to be a part of that. So, I intend to engage in a conversation with the American people, as aggressively as I can to help them understand the Justice Department, and to help them inform me about what they expect from the Justice Department. And that I would take those conversations to the president of the United States, with a view towards being responsive to the people of America to give them the kind of Justice Department in which they can have confidence and on which they could rely for integrity and justice.
And it's a very exciting thing to me. If I am honored with the confirmation of the United States Senate, I will make it my high- intensity effort and I believe the outcome will be very, very satisfactory and pleasing. And I thank you for the question.
LEAHY: The committee will stand recessed until 7:30. During the break, Senator Hatch will check with members on his side, I have members on my side, to see if there are further questions for the nominee or whether there are simply questions that can be submitted. You have had a long day here and I would hope that you and your staff, but especially Mrs. Ashcroft, could have some time.
JUDY WOODRUFF, CNN ANCHOR: For a second day, Senator John Ashcroft, former Senator Ashcroft, facing tough questioning, particularly from Democrats on the Senate Judiciary Committee. We've seen pretty much an alternate pattern. When a Democrat questions, it's a tough, challenging question. When it's a Republican, the questions, of course, are much more friendly.
And Chris Black, who's been watching and listening to these hearings all day long, they have touched on virtually every subject you could think of that could have been considered a liability in John Ashcroft's past, be it attitude toward blacks, attitude toward gays, abortion rights, even his comments about the Supreme Court justices -- Chris.
CHRIS BLACK, CNN CORRESPONDENT: Judy, that's absolutely right. He took questions for more than 7 1/2 hours from his former colleagues on the Senate Judiciary Committee. And the Democrats, frankly, show no signs that they're finished with him, even though they've taken a one-hour break now for dinner.
Senator Ashcroft did find himself on the defense this afternoon on issues of race. Senator Dick Durbin, a Democrat from Illinois, very pointedly criticized Ashcroft for his role in blocking Supreme Court Justice Ronnie White from being elevated to the federal court. He's a judge in Missouri. And Senator Joe Biden told -- told Ashcroft in a very interesting exchange that a lot of African-Americans were really troubled by the accumulated weight of Ashcroft's record and were skeptical as to whether he would be sensitive to the concerns of minority Americans.
Ashcroft just absolutely said that he -- that he was not -- he repudiated any sort of racial antagonism at all. But he at many times today, Judy, sounded very much like a moderate. He again reiterated that he would uphold existing laws on abortion and gun restrictions, laws which he has tried to overturn as a senator. And he made a point over and over again to his fellow senators, former fellow senators, that his role would change as the attorney general of the United States and that he would just be a part of the Bush administration. He would not be seeking to overturn laws but to enforce them.
He got some good news today. In an interview with CNN, Senator Tom Daschle, the Democratic leader, said quite emphatically the Democrats will not filibuster on the floor of the Senate any of George Bush's nominees. He said it's right that they get their day in court, they get their vote. And Senator Zell Miller, a Democrat from Georgia, put out a statement saying that he would definitely vote to confirm -- to confirm John Ashcroft. This means so far that he looks like he has the votes to win -- Judy.
WOODRUFF: So, Chris, despite these very tough questions that we've been describing, from what we're seeing and what we're hearing, it doesn't look like this adds to denying him confirmation.
BLACK: It doesn't look like that now. But remember, we still have another day to go. The panels will begin tomorrow. Justice Ronnie White will be the first witness tomorrow. There will be a number of activists from different advocacy groups, from Planned Parenthood to NARAL, who will be testifying against them. And one activist, who's leading the charge against Ashcroft today, said today we heard only half of the story from Ashcroft. Tomorrow, we'll hear the other half -- Judy.
WOODRUFF: All right, Chris Black at the Capitol, been watching these hearings. And we want to tell our viewers that if John Ashcroft returns after this one-hour break, we will carry those hearings live. Otherwise, we will be carrying them live tomorrow when Missouri Justice -- Supreme Court Justice Ronnie White is scheduled to testify.
I'm Judy Woodruff in Washington. We are going to take a short break now.
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