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Witnesses Testify for and Against Ashcroft Nomination

Aired January 18, 2001 - 11:06 a.m. ET


DARYN KAGAN, CNN ANCHOR: We want to go back to Washington, D.C.; it is the resumption of the Ashcroft hearings for attorney general.

Let's go ahead and listen in to Senator Patrick Leahy of Vermont.

SEN. PATRICK LEAHY (D), VERMONT: ... "Chip" Robertson, a lawyer and former justice of the Missouri Supreme Court; Ms. Harriet Woods, whom I know, and the former lieutenant governor of Missouri; Jerry Hunter, Mr. Jerry Hunter a lawyer and former labor secretary of Missouri; Mr. Frank Susman, lawyer from Gallop, Johnson, Neuman of St. Louis; Ms. Kate Michelman, who is the president of NARAL, here in Washington; Ms. Gloria Feldt is the president of Planned Parenthood Federation of America; Ms. Marsha Greenberger, who is the co-president of the National Women's Law Center, Washington, D.C.; Ms. Colleen Campbell, member of Memory of Victims Everywhere, from one of the prettiest areas there is, San Juan Capistrano, California. If I misstated the actual names of the organizations, trust me, we'll get it right before the day is over.

What I want to do is have -- each witness will have five minutes. I suggest and we are going -- because they're so many -- we are going to have to run the clock pretty strictly. Your whole statement, of course, will be part of the record. My experience is that there's something you really want us to remember the most, you may want to emphasis, but I will leave it any way you want to go.

And so, Judge Robertson, we'll start with you, and move from my right to the left.


Mr. Chairman and members of the committee, my name is Edward D. Robertson, Jr., I am a partner in the law firm of Bartimus, Frickleton, Robertson and Obetz, and we have offices in Kansas City and Jefferson City, Missouri.

I appear before you today to speak on behalf of John Ashcroft's nomination to become attorney general of the United States.

LEAHY: Could you pull the microphone just a little bit closer, please, Mr. Robertson?

ROBERTSON: OK. I do so from the vantage point of one who served as the deputy attorney general of Missouri from 1991 until -- sorry, from 1981 until 1985, at a time when John Ashcroft was attorney general.

On March 4, 1801, Thomas Jefferson addressed the people of the United States in his first inaugural address. He acknowledged the rancor that marked his election, but he stated, "Every difference of opinion is not a difference of principle."

If press accounts are accurate, it appears that some of the members of the Senate may disagree with John Ashcroft's opinions. I trust, however, that none of you disagrees with the principle on which he will found every decision he makes as attorney general of the United States, should you confirm him. That principle requires that the rule of law, established by Congress and interpreted by courts, will prevail, must prevail, as he carries out his duties as attorney general.

As attorney general of Missouri, John Ashcroft issued officials opinions concluding, for example, that evangelical religious materials could not be distributed at public school buildings in Missouri. And you have heard a number of those opinions discussed previously in this hearing, and I will not list them for you now.

If one believes Senator Ashcroft's critics, each of these opinions should have reached a different result. But they did not for one overriding reason: then-Attorney General Ashcroft let settled law control the directives and advice he gave Missouri government.

Now, I do not intend to take much more of the committee's time with these prepared remarks, as there are so many of us, and I'm sure you have questions for all of us.

I have known John Ashcroft for nearly a quarter of a century. If we could boil him down to one single essence, we would find a man for whom his word is both a symbol and a revelation of his deepest values. This means one thing to me, one thing to which nearly a quarter of a century has failed to provide a single, contrary example: When John Ashcroft gives his word, he will do what he says, period.

Those who are with me at the table have opinions, some of them, that differ from Senator Ashcroft's opinions. But they, like the members of this committee, of the Senate, and every American, can count on John Ashcroft's word. When he tells you that he will follow the settled law, he will follow the law. Thank you, Mr. Chairman.

LEAHY: Thank you very much -- Ms. Woods.

HARRIET WOODS (D), FORMER MISSOURI LIEUTENANT GOVERNOR: Mr. Chairman, Senator Hatch, members of the committee, I am here to provide information that I hope will help you to decide whether to confirm John Ashcroft as attorney general.

I have to say, which John Ashcroft? I've listened to these hearings and heard him say that he will conform to Roe v. Wade, that he will support mandatory trigger locks. You understand that, in Missouri, over and over, he has shown an absolute dedication to the overturn of Roe v. Wade, campaigned for concealed weapons.

I will try to sample in my very brief remarks a number of cases where I feel that he has pushed particular agenda or ideological values rather than administer justice in an even-handed manner.

But I also have to ask, is this -- in his testimony, he was proud of having set records for appointing women and minorities? He had an abysmal record in appointing women, so much so that he was cited for having the lowest number of executive appointments of any governor in this country, and he never reached any more in his whole term. He appointed exactly 10 women out of 121 judicial appointments. He didn't appoint the first one until he was more than half way through his first term as a result of really heavy publicity even on the front page of newspapers condemning him in the record of Missouri.

As for the minority appointments, I'm sure other people will talk about them. But when he says he created a record, I have to point out that the two previous governors -- one had appointed no black judges and the other, three. So that he set a record of eight I really applaud. But the next administration appointed 30. So we have to put this all in perspective.

Governors love to say, "Well, he could only appoint people as they were presented by the panels." They never say that the governors appoint the members of the commission, at least two out of the five. And in at least one case, Governor Ashcroft appointed a minister on the commission in Kansas City, who was quoted in the newspaper as saying he didn't believe women belonged on the bench. You would not be surprised that not many women applied.

So this is a lot more complicated.

You know, I respect Governor Ashcroft, Senator Ashcroft, he has lifted his hand and says he swears to uphold the law. He swore to uphold the law in Missouri also.

In 1985, when both of us were sworn in, one as governor and one as lieutenant governor, the odd couple, of course -- I'm a Democrat, he's a Republican. He said to me, "I could find useful things for you to do, but in return you will have to give up the authority to serve as the governor in my absence, when I leave the state." I was really stunned. I said well, "Why? I mean, I certainly would do nothing to in any way misuse that power. I want to cooperate with you. I have every motive to cooperate with you. I can't unilaterally give up a constitutional duty." He said, "That's not the way I read the law." And he left the state without notifying me or the secretary of state.

He didn't at that time contest this in the courts. He didn't say let's get this law changed. Ultimately, it was ridiculous. And the only recourse I had was clearly to go to the press and I said so. Finally, they slipped a note under my door that he was leaving the state, and we had no further problem. But he raised the same thing with my successor Mel Carnahan, poisoning the atmosphere with him.

Ultimately we did go to court. The court said his authority did extend when he was outside the state, but the judge added, he really ought to work with the lieutenant governor to better serve the people of the state.

I'm sure you will hear about a '78 case in which he chose, under the antitrust laws, to prosecute the National Organization for Women for conducting boycotts of the state for failing to ratify the ERA. He was turned down at the district court; he was turned down at the appellate court; the Supreme Court rejected it. It's very unclear to me whether the fact that he opposed the ERA was more a motivation than whether he was really properly using the laws of the state to uphold the law.

In 1989, very quickly, after the Webster decision, he appointed a task force in which he appointed -- for women's health care and children -- in which he named only people who were opposed to abortion. The leaders in the legislature were so outraged that they said they wouldn't participate. How could this reflect all the interests of the state?

And this was not the only case where he had done something like this. In 1999, a distinguished Republican, a former Supreme Court justice, Charles Blackmon (ph) said in a footnote in a Law Journal article about Senator Ashcroft's hearing on judicial activism, "I wrote Senator Ashcroft several times requesting information on the hearings and offering to testify and to provide a written statement. I received no reply. The witness lists seemed to consist of individuals whose views harmonized with those of the senator."

A case that's been cited that he followed the law in not having Bibles distributed in public schools. What they do not say is that Missouri became, I think, the final state that provided no licensing for church-run day care centers, even when they very carefully amended it to say, "We will not interfere with what is said there," but there has to be some minimum health and safety for children. John Ashcroft was protecting those church-run schools instead to the very end.

I have, obviously, no more time. I hope that if there are any questions, particularly about the myths about why the 2001 election, or overriding that, the racial issues in Missouri, which I think are so important, I'll be glad to respond.

LEAHY: Thank you.

Mr. Hunter?

JERRY HUNTER, FORMER MISSOURI LABOR SECRETARY: Mr. Chairman, Senator Leahy, ranking member Senator Hatch, and members of the Senate Judiciary Committee, it is indeed a pleasure and honor for me to be here today to testify in support of President-elect George W. Bush's nomination of John Ashcroft to be attorney general of the United States.

Based upon my personal knowledge and relationship with Senator Ashcroft, I believe he is eminently qualified to hold the position of attorney general. I have known Senator Ashcroft since 1983, and I have had the pleasure to work with him as an adviser, a subordinate during the period I was director of the Missouri Department of Labor, from 1986 to 1089, and as a friend and supporter.

During the period that I've known Senator Ashcroft, I have always known him to be a person of the utmost integrity and an individual who is concerned about others. Contrary to statements which you have just recently heard and will hear from others during this hearing, I do not believe Senator Ashcroft is insensitive to minorities in this society, and I think the record, which has been laid out by Senator Ashcroft, clearly contradict these allegations.

Like President-elect George W. Bush, Senator Ashcroft followed a policy of affirmative access and inclusiveness during his service to the state of Missouri as attorney general, his two terms as governor, and his one term in the United States Senate.

During the eight years that Senator Ashcroft was attorney general for the state of Missouri, he recruited and hired minority lawyers. During his tenure as governor, he appointed blacks to numerous boards and commissions. And Mrs. Woods -- my good friend, Mrs. Woods -- referred to that, but I would say to you on a personal note, Senator Ashcroft went out of his way to find African-Americans to consider for appointments.

In fact, it was shortly after then-Governor Ashcroft took office in January of 1985 that I received a call from one of the governor's aides who advised me that the governor wanted me to help him to locate minorities that he could consider for appointments to various state boards and commissions and positions in state government. At the time I was employed in private industry in St. Louis as a corporate attorney. I certainly was pleased that the governor had asked me to assist the administration in helping him to locate and recruit African-Americans that he could consider for appointments.

During his tenure as governor, John Ashcroft appointed a record number of minorities to state boards and commissions, including many boards and commissions which previously had no minority representation. Governor Ashcroft also appointed eight African- Americans to state court judgeships during his tenure, including the first African-American to serve on the state appellate court in the state of Missouri and the first African-American to serve as a state court judge in St. Louis County. Governor Ashcroft did not stop with these appointments. He approved the appointment of the first African- Americans to serve as the administrative law judges for the Missouri Division of Workers' Compensation in St. Louis City, St. Louis County and Kansas City.

When Governor Ashcroft's term ended in January of 1993, he had appointed more African-Americans to state court judgeships than any previous governor in the history of the state of Missouri. Governor Ashcroft was also bipartisan in his appointment of state court judges. He appointed Republicans, Democrats and independents. One of Governor Ashcroft's black appointees in St. Louis was appointed, notwithstanding the fact that he was not a Republican and that he was on a panel with a well-known white Republican. Of the nine panels of nominees for state court judgeships, which included at least one African-American, Governor Ashcroft appointed eight black judges from those panels. And in appointing African-Americans to the state court bench, Governor Ashcroft did not have any litmus tests and none of his appointees to the state court bench, be they black or white, were asked his or her position on abortion or any other specific issue, and I know this because I talked to many of the black nominees prior to their interview and talked to many of the black nominees after their interview. Governor Ashcroft's appointment, in fact, of the first black to serve on the bench in St. Louis County was so well received that the Mound City Bar Association of St. Louis, one of the oldest black bar associations in this country, sent him a letter commending him.

As an individual who was personally involved in advising Governor Ashcroft on appointments from 1985 through 1992, and as one who served as the director of the Missouri Department of Labor under Governor Ashcroft from 1986 through 1989, I can unequivocally state that the regard which he was held in in the minority community during his tenure as governor was of the highest regard. Mr. Ashcroft's record of affirmative access and inclusiveness also includes his support of and later signing of legislation to establish a state holiday in order of Dr. Martin Luther King during 1986.

Since 15 years have passed since the passage of the legislation in Missouri which created the holiday in honor of Dr. King, many individuals here today probably have forgotten the opposition which existed in the legislature to the establishment of Dr. King's birthday as a state holiday. The King bill had been introduced in the legislature for numerous years and many of those years the bill never got out of committee, and most years it certainly didn't pass either House or the legislature. It was not until 1986, after then-Governor Ashcroft announced his support for the King holiday bill that the legislation sailed through the legislature and was ultimately signed by Ashcroft.

And following the conclusion of the ceremony where Governor Ashcroft signed the King holiday bill, I went into the governor's office and privately thanked him for signing the bill and Governor Ashcroft responded to me by saying: "Jerry, you do not have to thank me. It was the right thing to do."

Because of his sensitivity to the need for role models from minority communities, then-Governor Ashcroft established an award in honor of African-American educator George Washington Carver. He also signed legislation making ragtime composer Scott Joplin's house the first historic site honoring an African-American in the state of Missouri.

Mr. Chairman, I see my time is up. I would like to make to one final point and would be happy to respond to any questions. When Governor Ashcroft sought re-election in the state of Missouri as governor during 1988, he was endorsed by the Kansas City Call newspaper, which is a well-respected black weekly newspaper in the state of Missouri. And in that election, he received over 64 percent of the vote in his re-election campaign for governor.

LEAHY: Thank you, Mr. Hunter. And you're correct; you did go overtime. I'm trying to be as flexible as I can, but there are a lot of other witnesses. And were hoping that by late tomorrow night we might have this whole hearing finished.

SEN. ORRIN HATCH (R), UTAH: We're hoping by late tonight to get this hearing over, and there's no reason not to.

LEAHY: I think closed down -- I think they told all federal employees to go home at 2:00 this afternoon because President-elect Bush and Ricki Martin are having a party...

HATCH: We know how hard you work, senator. We know your willing to...

LEAHY: But I don't want to interfere with president-elect and Ricki Martin.


HATCH: Well, I do if that's what it's going to -- if it's going to put us into tomorrow...

LEAHY: ... you think he's better...

HATCH: This is a good show.

LEAHY: Mr. Susman...

FRANK SUSMAN, ATTORNEY: If you'd be kind enough to reset the clock, I'll stay with the...

LEAHY: I'm looking at the clock, myself, and it's saying -- there we go. By the way, it's almost there. You've got it.

SUSMAN: Mr. Chairman, Senator Hatch, members of the committee, I appreciate your invitation and this opportunity to share my thoughts in the pending nomination of John Ashcroft as attorney general of the United States.

Up front, let me state, I strongly oppose this nomination. I'm a practicing attorney in Missouri with a long history of handling matters involving health care, particularly as they relate to women, contraception, and abortion.

Although a minor part of my law practice, I've been counsel in at least six cases involving these issues before the United States Supreme Court, three additional cases before the Missouri Supreme Court, as well as numerous other cases in courts throughout the United States.

Domestically, the Cabinet position of attorney general is the most powerful of any. The attorney general has the ability to shape the future of the Senate Judiciary through his or her involvement in judicial appointments, through the 641 district court positions, the 179 circuit courts of appeal positions, and the nine Supreme Court positions. The attorney general does much more than merely enforce the laws of this land. The attorney general is able to influence legislation merely by the persuasive powers of the office. It is myopic to believe that the office possesses no discretion in interpreting the laws of the land, particularly on legal issues neither previously no clearly decided by the Supreme Court.

The attorney general has the discretion to select which laws should be given priority in enforcement through control of the purse and the assignment of other resources.

Based upon the nominees consistent public statements and public actions over many years, I have no doubt that he would use the powers of the office to shape the judiciary and the law to his own personal agenda, at the great expense of women, minorities, and our current body of constitutional and statutory law.

History is indeed a reliable precursor to the future. While Missouri's attorney general, the nominee issued a legal opinion seeking to undermine the state's nursing practice act. He opined the taking of medical history, the giving of information, and the dispensing of condemns, IUDs, and oral contraceptives, the performance of breast exams, pelvic exams, and pap smears, the testing for sexually transmitted diseases and the providing of counseling and community education by nurse practitioners constituted the criminal act of the unauthorized practice of medicine.

Each of these services were, at that time, routine health care practices, provided by Missouri nurses for many years, and in fact, were being provided by nurses within the states own county health departments.

As directly related to the case Sirmky versus Gonzales (ph) filed by impacted physicians and nurses, these nursing activities were being provided in federally designated low-income counties in which there was not a single physician who accepted as eligible women patients for prenatal care and childbirth because of the low fee reimbursement schedules established by the state of Missouri.

This opinion by the nominee provided the impetus for the state's board of registration for the healing arts to threaten the plaintiff physicians and nurses with a show cause order as to why criminal charges should not be brought against them.

Implementation of the nominee's opinion would have eliminated the cost effective and readily available delivery of these essential services to indigent women, who often utilize county health departments as their primary health care provider, and would have shut and bolted the door to all poor women who relied upon these services as their only means to control their fertility. A unanimous Missouri Supreme Court struck down the nominee's interpretation of the nursing practice act.

During the nominee's term as governor of Missouri, family planning funding was limited to the lowest amount necessary to achieve matching federal Medicaid funds. And during this same period of time, teenage pregnancies in Missouri increased. The nominee vigorously opposed the Snowe-Reid amendment to the Federal Health Benefits Plan seeking to extend federal health care coverage to include contraceptives. The nominee cosponsored unsuccessful congressional legislation seeking to impose upon all Americans a congressional finding that life begins at conception, which would have eliminated the availability of many common forms of contraception and legislation requiring parental consent for minors to receive contraception.

Throughout his political career and at every opportunity, the nominee has sought to limit access to and require parental consent for not only abortion, but for contraception, as well. Although parental consent has never been suggested as prerequisite for a minor to engage in sexual intercourse or to bear children.

Although the nominee has continually sought to give the decisional rights of a minor to her parents, he has never suggested that these same parents have any financial or other responsibility for the minor's child once born.

The nominee's involvement with Bob Jones University, with the nominations of Dr. Henry Foster and of Dr. David Satcher as surgeon general, the nomination of Ronnie White as federal district court judge; his tireless opposition to court-ordered desegregation plans; his support of school vouchers and of school prayer -- all portray a person of deep, personal convictions, an admirable quality in other context. But when these convictions are historically at odds with existing law and public sentiment in this country, then a person with such convictions should not be asked to ignore them in an effort to carry out faithfully the oath of office, nor should we ever place any nominee in such an untenable dilemma.

In conclusion, I implore you to send a message to our president- elect to submit to this committee a nominee for attorney general in whom an overwhelming majority of our citizens can admire, take comfort and have confidence in to administer the office of attorney general in a fair and just manner for all Americans rather than an individual who has devoted his political career opposing the laws of this land on a wide variety of issues affecting the every day lives and the will of the people. Thank you.

LEAHY: Ms. Michelman, we welcome you to this committee...

KAGAN: And the list of witnesses goes on. This is the confirmation hearing for John Ashcroft as attorney general; a few more witnesses to go.

We're going to take a break and bring you more right after this.



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