Text of Ashcroft Confirmation Hearing, Day Two
Wednesday, January 17, 2001

The following is the full text of the second day of Attorney General-designate John Ashcroft's confirmation hearing in Washington before the Senate Judiciary Committee.

SEN. PATRICK J. LEAHY, D-VT., CHAIRMAN: As those who have spent time in the Senate know, it's the luck of the draw where you end up for hearings. Today we're in the historic Senate Caucus room, the site of so many important Senate hearings, hearings into the sinking of the Titanic were held here. As you look around this room, you'll probably never see another public room anywhere in the country made like this. The McCarthy hearings, a number of hearings of the Supreme Court nominations and others were held here.

Yesterday we began the hearings with opening statements from nine Republican senators and seven Democratic senators. We heard from both senators from Missouri, who introduced Senator Ashcroft, and an additional Republican senator who testified in support of his nomination.

We heard the nominee's opening statement and his responses to the beginning round of questions. Today when we resume, we will begin with Senator Kohl and then go to the distinguished senator from Iowa. We'll try to conclude these opening rounds of questions for the nominee by sometime this evening. Now, I know that a number of senators have a number of questions and concerns. I want to give the nominee opportunity to respond to each of these, and we're willing to stay as late tonight as necessary, but it's going to take some cooperation.

I'd like to conclude the official witnesses today, if we can. There's a lot of shifting demands going on, some from the other side. But I also want to make sure — there was a suggestion yesterday by the nominee that sometimes questions come very rapidly. As I said during the hearing yesterday, if he feels he did not have a chance to fully answer a question, he can answer that to us, and, of course, the senator asking the question can do a follow-up. He also has, as any nominee does, an opportunity to correct any answer, if he chooses to do so.

For example, yesterday Senator Ashcroft testified that the state of Missouri was not a party to the school desegregation litigation in St. Louis, and the state had done nothing wrong and there was no showing of a state violation. However, the state was a party defendant in that litigation since at least 1977, and the courts repeatedly held that the state was legally liable. The 8th Circuit Court of Appeals noted in 1981: The state of Missouri vigorously contends that it should have no part in paying for the costs of integration because its actions did not violation the Constitution. This contention is wholly without merit.

LEAHY: We specifically recognize the causal relationship between the actions of the state of Missouri and the segregation existing in the St. Louis school system.

The next year, on another appeal in that case, the Eighth Circuit wrote that the state had substantially contributed to the segregation of public schools in St. Louis.

And in yet another opinion, in another appeal in that case, the Eighth Circuit termed the state a primary constitutional violator and noted that the state's constitution and statutes mandated discrimination against black St. Louis students on the broadest possible basis.

Now, that is my understanding, and I would ask, is there any disagreement with that understanding?

ASHCROFT: Well, I appreciate the opportunity to clarify the situation, which involved the discussion of both the case in St. Louis and some of the case in Kansas City, which outlined and sort of defined the state's involvement some orders regarding the funding of desegregation plans in both of those communities.

And when the state was initially ordered to do things, I argued on behalf of the state that it could not be found legally liable for its segregation in St. Louis because the state had not been made a party to the litigation.

Subsequent to that time, the state was drawn into the litigation, and, obviously, by the time we had the case of Missouri v. Jenkins, which was what happened eventually in the Kansas City situation, the state was fully a party and, obviously, one of the named parties in the Supreme Court lawsuit.

And I thank the chairman for making it possible to clarify that there was a time at which the state became a party, but that the state was originally...

LEAHY: You were attorney general at that time, is that correct?

ASHCROFT: I believe that's correct.

SEN. ORRIN G. HATCH, R-UTAH, RANKING MEMBER: I wonder if we could go to the regular order, Mr. Chairman.

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

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

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

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

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

But go ahead, Senator Kohl.

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

LEAHY: Thank you.

Senator Kohl?

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

Yesterday, Senator Leahy read a 1998 quotation of yours.

KOHL: Quote: "There are voices in the Republican Party today who preach pragmatism, who champion conciliation, and who counsel compromise. I stand here today to reject those deceptions. If ever there was a time to unfurl the banner of unabashed conservatism, it is now," unquote.

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

As someone who works the middle of road, myself, I find these statements troubling. Tell us why we should believe that as attorney general, you will accept those voices in your own party who counsel compromise.

ASHCROFT: Well, I thank the senator for that question. I'm still getting adjusted to this, to hearing myself. It's like talking in the shower in this room. It's a little bit different, but I thank you.

The first quotation was a quotation about whether, in my judgment, a party should set forth a clear agenda. And I think it's important for the party to be in a position to debate. And I would expect the Republican party to be stating a clear, conservative position. And I generally expect people on the other side to state a more predominantly liberal position.

And the process in the collision of those ideas is what I appreciated as the process in which we were able to work together in many instances to get legislation.

When different ideas come from different quarters, those differences enhance the ultimate quality of what we do, and — pardon me for lapsing back into my "we do." I'm no longer a member of the Senate, and I understand that. But at the time, I was a member of the Senate. And I think that when there are people who state a strong position on one side and a strong position on the other representing their parties, and then they come together in the process to reach a conclusion, it's valuable.

Another way of putting it would be that if we were all right there in the middle together, we wouldn't need the legislative process. The legislative process is the process of disagreement. It's the process of debate. It's the process of stating these and examining the various positions from one end to the other and then harmonizing those differences by working together.

So I expect the Republican Party, generally, to state a pretty strong conservative view, and to start the negotiations from that view with the understanding that, by the time you finish, we're going to have something that's going to be an enactment that results in something that the people can generally support and that will have good values expressed from a variety of significant perspectives.

ASHCROFT: I'll have to say this, that I mean no injury or disrespect to those individuals who don't have my views in that respect. I just wanted to encourage people to not to think they always had to think what other people thought. They were free to have a position at one end of the spectrum or another. And that in the collision of those views, we hope that out of that collision the truth emerges and good policy and legislation emerges. The joke about what you find in the middle of the road, I really regret it, if anyone is offended by it. I had one of the individuals who intends to testify against me tomorrow come up to me this morning and say, "You know, I agree with you about the middle of the road. I'm on the other side of the road, and I tell the same story." Now, I don't know whether she will want to confess that when she is testifying tomorrow. But she said, "I understand the joke. I'm from Texas and we didn't say dead skunk, we said armadillo."

Frankly, I would be the first to say that I do not intend to impugn people for their political positions. And I'm sorry if that is to be taken in that respect. It was meant as a humorous sort of aside to say that I generally have been characterized fairly as a common-sense conservative and I haven't been right in the middle of the road.

KOHL: Well, you're likely to be confirmed, as we all know, as the next attorney general of the United States. How will you be, or will you be, a different kind of an advocate as attorney general than you have been as a senator, in the sense that we in the Senate have seen you consistently very much on the right on virtually every issue? And that's fine. I mean, you know, you campaigned as that kind of a senator-to-be. You were elected and you've been that kind of a senator, and a very respectable senator, obviously. Is there a different kind of a person within your obviously strong philosophical background and views — but is there a different kind of a person who we might well expect to see as the attorney general of the United States?

ASHCROFT: Well, I thank you for that question, because these are vastly different roles. I mean, if a person is playing in the power- forward position he has one approach to the basket. If he is playing as the distributor of the ball, as the play-maker, he has another approach.

When I was in leadership responsibilities with the National Association of Attorneys General, I understood that it wasn't my position to be in — I had to sacrifice some of my advocacy roles and some of what otherwise would have been my approach, to be responsible in those positions.

Similarly, when I was chairman of the National Governors Conference, or when I was elected to be the chairman of the Education Commission of the States, which was an education organization that involved, not only all the governors, but members of all the state legislatures and all the state school organizations that dealt with education.

And there's another important difference with the attorney general, in that, as it relates to policy matters, he is referenced to the president of the United States. And it would be my responsibility to carry forward on things that this president of the United States would expect me to advance.

Now, that's not inconsistent with what an attorney does, because an attorney represents individuals all the time. That's part of what we are trained to do. But I would say to you that I would expect, in the role of attorney general, to enforce all the laws vigorously; and as it related to policy matters, to reflect the administration's policy and effort to achieve the kinds of things that this administration was elected to achieve, by the American people.

So I understand the distinction. I think my past indicates that I've been capable on a number of occasions in making the difference in adjusting the way that I approach things to fit my responsibilities in the role that I'm expected to play.

And I can pledge to you that I will work — to work with all people at the attorney general's office, and I will welcome the participation and conversation and involvement of all kinds of individuals.

In that respect, it may not be totally different from what I've done here in the United States Senate, because I've had the privilege of cosponsoring legislation with a lot of individuals, the chairman, in particular. And, obviously, we're not, what you would call inseparable twins on policy, but there are areas in respecting privacy...

LEAHY: Separated at birth.

ASHCROFT: Separated at birth? Yes, OK.

That have made it possible for us to work together. And I would expect to work with a broad range of individuals, especially be honored to do so with members of this committee.

KOHL: OK, thank you.

In 1979, as attorney general of Missouri, you brought an antitrust case against the National Organization of Women for sponsoring a boycott of states that had not yet ratified the Equal Rights Amendment. You lost the case all the way up to the Supreme Court.

It is a basic principle of antitrust law that when boycotts involve noncommercial concerns, the Sherman Act does not apply.

KOHL: And yet even if you lost the case, you still disputed the ruling. In 1981, you wrote a Law Review article that said, quote, "The decision created a potentially disastrous exemption from the antitrust laws," and that "parts of the decision severely strained antitrust laws."

You seem to have pursued a highly unusual use of the antitrust laws. Some have argued that you chose to further your political views above the Equal Rights Amendment by using your office as state attorney general. Furthermore, you kept appealing the case despite well-established Supreme Court precedent against you. Can you explain to us why you chose to pursue that case so vigorously?

ASHCROFT: I thank you for the question, and it's a valid one. In response to the fact that the elected representatives in the legislature of Missouri chose not to ratify the Equal Rights Amendment, a boycott was organized of the state of Missouri which would have curtailed the state's ability to attract conventions and provide employment to individuals who populate the convention industry.

This lawsuit took place over 20 years ago, and I'm not sure I can recall all of the details. We filed the lawsuit, to the best of my recollection, because the boycott was hurting the people of Missouri, and we believed it to be in violation of the antitrust laws. The lawsuit had nothing to do with the ERA — we didn't sue the ERA — or with the political differences that I might have had with NOW. It simply was with the practice of saying that we're not going to — we're going to curtail convention business, and for individuals in my state who relied on that industry, they were to be hurt.

Now, I litigated that matter thoroughly, and frankly, other states attempted it. One other state attempted a similar lawsuit, and not too long thereafter, I think a similar lawsuit was launched by an organization that questioned whether or not commercially directed boycotts were susceptible for achieving political ends.

I think the law is well-settled and clear. After our case was resolved, and in the 8th Circuit Court of Appeals one of the judges found in our favor and two of the judges found against us, so that it was a matter which had some acceptance in the courts. But obviously, I didn't carry the day.

I think the law is clear now and has been clear in the aftermath of that decision. And from that perspective, I don't think it's an issue and can't be an issue. And there is and has been a well- established, subsequent set of circumstances that have demonstrated that commercial boycotts targeting individuals or industries to force third parties to vote or to conduct themselves in some way politically are acceptable.

ASHCROFT: And since that's the case, that's the situation and the rule of law at this time. Having lost the case 2-1 in the 8th Circuit Court of Appeals and the Supreme Court having denied cert, and other cases having been resolved, I accept that fully and have not recently alleged that there ought to be any change in the law in that respect. It is a part of the way, I've come to believe, America resolves these issues.

KOHL: Antitrust, Senator Ashcroft. Last week, American Airlines announced that it will buy TWA and enter a joint agreement to run D.C. Air and operate the Washington-New York shuttle. Meanwhile, the US Airways-United merger is under scrutiny at Justice. By mid-spring, we might see four airlines turn into two, and these two merged airlines will control a tremendous share of airline travel in the United States.

The combined US Airways-United and American-TWA share will be nearly one half of the domestic airline market. These two airlines will collectively dominate no fewer than 13 hubs, including many of our major, major airports.

This fast-moving consolidation in the airline industry doesn't leave the head of the Justice Department much time. Before we know it, we could have a domino effect in the airline industry take place. There's a real chance that transition and paralysis could result in a merger wave that won't stop until there are only three or four airlines nationwide.

How concerned should we be about this pending airline consolidation? When confirmed — if confirmed — how quickly do you intend to act? Is it something that's on your radar screen in a very major way? What can we expect from you by way of some action? Do you have something beyond the comment that it's a serious matter and you'll have to consider it? Can you tell us a direction in which you might very well go?

ASHCROFT: I consider it serious. I will study the issue very carefully. I do not know all of the facts and circumstances. I think it would inappropriate for me, not fully aware of this, to be announcing a position or a direction.

I can tell you that I believe that competition is very important. And the absence of competition, I have witnessed, and it's a serious problem. In the absence of competition, I think you have very serious problems with rates. We've all seen what happens when there is only one way out of town. And we've watched how, in those settings, rates go way up. We've watched when Herb Kelleher comes to town with Southwest Airlines, and we've watched happens to rates in those situations. And my view is that it's very therapeutic when you get competition. I will do what I can to make sure that we maintain the right competition, but I'll have to base what I do on the responsibilities of the Justice Department. It has to be based on facts and a thorough investigation of the situation.

KOHL: Thank you, Mr. Chairman.

LEAHY: The senator from Iowa, Mr. Grassley, I am told by Senator Hatch, is in another confirmation hearing, where he's questioning the witness, and so we will turn to the senator from Pennsylvania, Senator Specter.

SEN. ARLEN SPECTER, R-PA.: Thank you, Mr. Chairman. Senator Ashcroft, I didn't realize how important this hearing was, until it was scheduled hear in the Senate Caucus Room. We haven't been here since Justice Thomas and Judge Bork. This is a very famous room for major matters. It's the room where President Kennedy announced for president back in 1960, so it's a commentary on the importance of the hearing. Permit me to go to a key issue on the choice issue, a woman's right to choose, and concerns which have been expressed about your enforcing the law, which I thought you stated very positively yesterday, and move to the area of prosecutorial discretion where there is substantial leeway for an attorney general, or even a district attorney, as I was for many years, dealing with the prosecutors' discretion on what cases to prosecute and how to handle them.

And what I think many Americans are looking for, beyond your assurance that you will enforce the law, is your commitment to exercise your discretion to carry out the intent of the law on a woman's right to choose within the confines of existing law, which you have promised to support.

One of the votes that you cast that I thought was particularly significant was the one in the bankruptcy context; interesting that it should have an application to a woman's right to choose. But when protesters blocked abortion clinics, there have been some very substantial verdicts handed down, one in excess of $100 million.

And when that issue came before the Senate, you voted that those individuals who had those verdicts against them would not be permitted to have a discharge in bankruptcy.

What assurances can you give, Senator Ashcroft, that your discretionary calls as attorney general will be to enforce the intent behind existing law on a woman's right to choose?

ASHCROFT: Well, any constitutionally protected right is an important right. And I think people who interfere with the exercise of constitutionally protected rights should be the focus of attention by prosecutorial authorities.

It's my understanding that there are anticipated several dozen cases a year in terms of the violence or obstruction or coercion around abortion facilities or other reproductive health facilities. And I would think that it should be the responsibility of the attorney general to be able to respond aggressively in every one of those situations.

SPECTER: Well, if you say aggressively, that is a good assurance. Aggressive has a well-accepted meaning. I like aggressive prosecutors.

Let me pinpoint the issue on constitutionality of the statute — the freedom of access to clinic entrances. There have been some 24 cases which have challenged the constitutionality of the act under the First Amendment and the Commerce Clause, and all 24 of these cases have been decided favorably to the constitutionality of the act. The job of the attorney general, just like the job of the district attorney or state attorney general, is to uphold the constitutionality of the act, and I note you're nodding in the affirmative. Would you commit to the attorney general's generalized responsibility to support the constitutionality of existing legislation, like the freedom of access to clinic entrances?

ASHCROFT: Let me just say that I would support the constitutionality of the act. I don't believe there is a First Amendment right to coercion and intimidation. I think that's the clearest thing I can say. When people say that this act interferes with their First Amendment right, I don't think that's what the First Amendment provides. The First Amendment does not mean that you have the right to intimidate a person who is exercising their constitutional rights. The First Amendment doesn't provide you with the right to violate the person, and safety and security of an individual in that respect. So I will vigorously enforce and defend the constitutionality of — of course, that's my responsibility.

When this Senate acts and makes a determination through enactment signed by the president that something should be the law, that places a very high level of responsibility on the attorney general to carry that out.

SPECTER: Let me move to freedom of religion, Senator Ashcroft, an area, again, where substantial concern has been expressed. There have been many quotations of your speech at Bob Jones University on, "We have no king but Jesus." And I view that as a personal comment which you have made. We all have our own views on religion. And the question is not what John Ashcroft or Arlen Specter hold as religious views, but whether the sacrosanct provisions of the First Amendment on freedom of religion will be maintained or enforced, and the attorney general has a very vital role there.

Political speeches frequently contain a lot of references to religion. This happens on both sides of the political aisle, and some of us may not do it and some of us may. But political speeches are one thing and personal views are another, but the most important factor is the enforcement of the law.

Now, I note that, as attorney general of Missouri, you had acted to prohibit the distribution of religious materials on a campus. And what I would like to know is your determination, putting aside your own views, your resoluteness to enforce the sacrosanct provisions for freedom of religion of the First Amendment, and perhaps if there are other instances that you could show, in addition to that one where you stop the distribution of religious material on a campus.

ASHCROFT: Well, first of all, I am committed to the right of individuals to worship freely in accordance with the dictates of their own conscience or not to worship at all. And I will work assiduously to defend that right for all Americans.

The phrase, "We have no king but Jesus," was a representation of what colonists were saying at the time of the American Revolution in a number of instances. And it became a bit of a rallying cry when people came to collect taxes on behalf of the king of England, and the American colonists would respond with that phrase.

I was putting in that speech in context the idea that the ultimate authority of the ultimate idea of freedom in America is not governmentally derived. It basically went to something that was reflected when Thomas Jefferson wrote the Declaration of Independence. He didn't write: We hold these truths to be self-evident, that all men get from government equality...

SPECTER: Senator Ashcroft, because of limited time...

ASHCROFT: Sure.

SPECTER: ... would you pinpoint what you did specifically as attorney general of Missouri in not permitting religious matters to be handed out on campus?

ASHCROFT: Well, the question was raised about whether Christian groups could distribute Bibles on school grounds. And the Missouri Constitution happens to be even more adamant about church and state, and requiring separation far more clearly, even than does the U.S. Constitution. And I looked at the Constitution and these groups, obviously, were groups that I had some favor for, but, obviously, the law has to be followed.

ASHCROFT: I simply...

SPECTER: Did you stop the distribution of those...

ASHCROFT: I issued the opinion that indicated that distribution was unlawful.

SPECTER: And what did you do?

ASHCROFT: Well, distribution ceased based on that.

SPECTER: Let me move to Supreme Court nominations. Senator Ashcroft, President-elect Bush has already said that he would not employ a litmus test on pro-choice, pro-life on Supreme Court nominees. On this panel, many of us who are pro-choice have supported candidates for the Supreme Court who were known to be pro-life, and many senators who vote pro-life have supported nominees who have been known to be pro-choice. To the extent that you have any rule in the selection of Supreme Court nominees, would you make a commitment not to employ a litmus test on the pro-choice, pro-life distinction?

ASHCROFT: I have not had a substantial discussion with the president-elect of the United States about my role in terms of judicial selection. I know the Constitution allocates clearly the appointment authority to the president. I know that he has indicated that he would not have a litmus test, and I believe that in my service to him, it would be important that I reflect that clear indication of his, that no litmus test would exist.

SPECTER: So you would make a personal commitment not to apply a litmus test to Supreme Court selections to the extent that you may be involved in that?

ASHCROFT: To the extent that I have the authority, I'm going to do — I'm going to work with the president and his framework for developing Supreme Court justices. The answer is clear: No litmus test. I think he stated that clearly and that would be my position.

SPECTER: Your position as well. OK.

The issue on antitrust has been broached by Senator Kohl, and I would like to pursue that a little further. I share Senator Kohl's concerns about the airline mergers. I'm concerned about what OPEC is doing. Just this morning these was an announcement of raised prices by OPEC curtailing production.

I would like to make available to you a letter signed by six members of this committee to the president in April of last year setting forth a basis for litigating with OPEC antitrust violations.

SPECTER: Staying with the antitrust issue another moment or two, without expressing any view on the Microsoft case, because it is a very complex issue — it has been decided in the District Court. It is on appeal to the Court of Appeals for the District of Columbia Circuit. The question which I would like your response to is to what extent you would honor the court process. It would be one thing if the matter was considered ab initio by Attorney General Ashcroft, if confirmed, contrasted with an action which is already under way.

Here you have a district court judgment, and you have the matter on appeal. To what extent — and here again I emphasize, I'm not commenting on the merits; that's something different. I'm only on the process as to the extent of recognition that, as attorney general, if confirmed, you would give to the existing legal status of the case.

ASHCROFT: Well, I'm very pleased to answer the question. The Microsoft case is a very important case. And the maintenance of competition in our culture is a very important aspect of what we need to make sure that we get the right output. I would first say that I'll have to confer with the people in the antitrust division. I don't know the facts of the Microsoft case. It is a very complex case, from what I've heard about the case. It relates to tying arrangements and the integration of various aspects of software. The judgment of the district court, obviously, would have substantial consequences.

I would look very carefully at this case, relying on the expertise of the department, in deciding strategy for the case. And I'm not in the position to assure you that I would do anything other than that at this time.

SPECTER: My yellow light is on, so I have less than a minute.

I would conclude this round, Senator Ashcroft, by noting your sensing of humor, noting your membership among Singing Senators. In a senatorial role on official responsibilities, there is very little opportunity for a senator to display any sense of humor when you're talking about the death penalty or your talking about the weighty legal issues that come before the Congress of the United States, but I think it's something that ought to be noted.

SPECTER: I have some concern, only slight, not about the fact that you don't drink or smoke, but that you don't dance...

(LAUGHTER)

... and some sense of wonderment as to how that fit in with your being so extraordinarily capable as a Singing Senator.

And I would come back only for a moment to the middle-of-the-road question, and there are a lot of moderates who have asked me — I talk to some from time to time — about...

(LAUGHTER)

. the only people in the middle of the roads being dead skunks and moderates. And I've seen your sense of humor in the hearing room, which I think is exemplary. And I've noticed it a lot when you were on this side of the bench where you might have felt a little more comfortable, and sometimes your quips may get you into a little trouble.

I think you've already explained it, but I have some explaining on that particular one with some of the people in the so-called moderate group.

Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Specter. I would not for the record the current chairman of this committee does dance, but that's probably disputed by my wife of 38 years.

(LAUGHTER) I turn to the distinguished senior senator from California, Senator Feinstein.

SEN. DIANNE FEINSTEIN, D-CALIF.: Thank you very much, Mr. Chairman.

Senator Ashcroft, I must tell you, I am deeply puzzled by what I heard yesterday and what I hear today. I'm one that believes that, in political life, of which you've been part for 25 years, it's very hard to change your stripes or change your spots.

and I see a kind of metamorphosis going on, a mutation, if you will, that somebody who has been really on the far right of many of the issues about which senators have spoken today or yesterday — civil rights, a woman's right to choice, certainly guns — is now making a change. And, quite frankly, I don't know what to believe.

I'd like to confine my questions to choice and to guns.

You have a long history of vigorously criticizing the pro-choice position.

In 1998 you wrote, "If I had the opportunity to pass but a single law, I would ban every abortion except those medically necessary to save the life of the mother." In 1983, while you were attorney general, you told the Missouri Citizens For Life annual convention that you would not stop until and amendment outlawing abortion is added to the United States Constitution.

When you spoke at the National Right to Life committee's annual convention, you said, and I quote, "The Roe decision is simply a miserable failure, and I hope that the Supreme Court announces it is overturning the Roe decision and giving back to the states the right to make public policy." While governor in 1989, you declared the 16th anniversary of Roe v. Wade a day immemorial for aborted fetuses.

So you have in fact been an implacable foe of a woman's right to choose for a quarter of a century. You have supported legislation and even a constitutional amendment that would define life at the beginning of fertilization, which would not only criminalize all abortions and take away a woman's right to reproductive freedom and choice, but would also outlaw and criminalize many forms of the most common birth control options.

I frankly don't know what to believe. You said of Bill Lann Lee, one of the reasons you voted against him was because he had the kind of intensity, and I quote, "that belongs to advocacy, but not with the kind of balance that belongs to administration."

And I might respectfully say the same thing about you and your record. I want to ask you some specific questions.

FEINSTEIN: We talked in my office about a rape exception, and let me ask this question: Each year more than 32,000 women become pregnant as a result of rape, and approximately 50 percent of these end in abortion. Given the circumstances surrounding any rape, and certainly a resulting pregnancy, can you tell us why you feel there is no need for a rape exception to a ban on abortion?

ASHCROFT: Thank you for your question. I understand these are deeply held views of yours, and my opposition to the aborting of unborn children has been a deeply held position of mine. I have sought in a number of ways through the years to reduce and to curtail the abortion of unborn children, and I understand that reasonable people do differ on these things. And that's been not only my understanding, but it has been a bases for my seeking to act in concert with people to cooperate to move toward a variety of different ways to reduce the level of aborting unborn children in our culture and in our society.

I have voted on numerous occasions for rape and incest exceptions and have voted for much broader exceptions than that. One time when I was governor I proposed that we only ban second abortions or abortions for second or third times. We banned abortions for racially mixed children, because people were wanting to abort a child for being racially mixed, or we banned abortions for sex selection.

So I think it's fair to say that, over the course of my time in office and with the prerogatives I've had as a public servant, I have adopted a variety of positions to try and reduce the number of children being aborted.

I think it is also fair to say that I know the difference between an enactment role and an enforcement role. During my time as a public official, I have followed the law, and my following of the law has been clear.

When I was the attorney general of the state and pro-life groups wanted to insist on the publication of abortion statistics for particular hospitals and they asked that those abortion statistics be published, I went to the law, and a fair reading of the law didn't allow for the publication of those statistics which could have made those hospitals the target for pro-life forces. I followed the law in saying that I would not force the state or rule that the state had to publish those statistics when I think the law was clear that it shouldn't.

So I have a record of being able to say, I know the difference between enacting the law, the debate about the law. My involvement in legislation has, very frankly, in recognition of the law, centered, in real terms, on trying to do things like get parental consent and other things like that. Those are the kinds of things which I have focused on — the ban on partial birth abortion.

But I will enforce the law fairly and aggressively, firmly. I know the difference between the debate over enacting the law and the responsibility of enforcing the law, and that's been clear in my record as a public servant.

FEINSTEIN: Will you maintain the Department of Justice's task force on violence against health care providers and give it the resources it needs to continue?

ASHCROFT: There have been, I think, three different task forces in this respect. I will maintain such task forces and provide them with the kind of resources that they need in order to make sure that we don't impair the constitutional right of women to access reproductive health services.

FEINSTEIN: Will you, 100 percent, investigate and prosecute activities that block the entrances to facilities where abortions are performed, even if the conduct is nonviolent?

ASHCROFT: If the conduct of anyone violates the law regarding the access of women to reproductive health services, I will enforce the law vigorously, I will investigate the alleged violations thoroughly, I will direct U.S. attorneys to devote resources to that on a priority basis.

FEINSTEIN: When you said yesterday that Roe was a settled question, does that indicate that you accept this adjudication and that you will use all of the elements of your office to support it?

ASHCROFT: I believe that both Roe and Casey and, I guess — is it Stenberg; is that the most recent case that related to the Nebraska statute? — are settled law.

In the application for certiorari, I think on the Stenberg case, there was a request by one of the parties that Roe be reconsidered. The Supreme Court has signaled very clearly it doesn't want to deal with that issue again.

I would say that I do not want to devalue the currency of the solicitor general of the United States by taking matters to the Supreme Court on a basis which the Supreme Court has already signaled: We don't want to deal with and were unwilling to deal with.

I think, you know, the solicitor general of the United States has some standing and prestige in the United States Supreme Court, and to consistently go back to the court insisting that the court do what the court has indicated that it doesn't want to do devalues the ability of the solicitor general in other matters. It not only is thus a losing proposition, but it is counterproductive as it relates to the ability to succeed on other issues in the Justice Department. And therefore, accepting Roe and Casey as settled law is important, not just to this arena, but important in terms of the credibility of the department.

FEINSTEIN: Let me change to guns for a moment. In this body, I was the main author of the assault weapons legislation in 1993. I feel very strongly and very passionately that assault weapons have no role in this society on the streets of our communities.

That law is supported by virtually every federal and local and state law enforcement agency across our land, and I think law enforcement recognizes that there is no legitimate reason for civilians to have military-style weapons that are useless for hunting or, really, for self-defense.

Now, the National Rifle Association, on the other hand, opposed and continues to oppose the federal assault weapons ban in court in suits in which the Justice Department took the other side defending the statute. You called this ban wrong-headed in a response letter to Sarah Brady in 1998. If you become attorney general, will you maintain the Justice Department position in support of the assault weapons ban?

ASHCROFT: Yes.

FEINSTEIN: Will you support its reauthorization when it sunsets in 2004?

ASHCROFT: It is my understanding that the president-elect of the United States has indicated his clear support for extending the assault weapon ban, and I would be pleased to move forward with that position and to support that as a policy of this president and as a policy of the Justice Department.

I might add that I had the — I don't believe the Second Amendment to be one that forbids any regulation of guns. In some of the hearings that I conducted when I had the privilege of serving on this committee and was the chairman of this Constitution Subcommittee, we discussed those issues.

And, for instance, in the Juvenile Justice bill, I sought to amend the Juvenile Justice bill so as to make semi-automatic assault weapons illegal for children, just as handguns are illegal for children.

And there are a number of enactments which I would not prefer as policy, but which I believe would be constitutional. As a policy- maker, I may not think that a particular weapons ban would be appropriate, but as — whether — I could have voted against a number of things which I thought constitutional but which I might have thought bad judgment.

ASHCROFT: What I'm trying to clarify here is that I believe that there are constitutional inhibitions on the rights of citizens to bear certain kinds of arms. And some of those I would think good judgment, some of those I'd think bad judgment.

But as attorney general, it's not my judgment to make that kind of call my judgment. My responsibility is to uphold the acts of the legislative branch of this government in that arena, and I would do so and continue to do so in regard to the cases that now exist and further enactments of the Congress.

FEINSTEIN: Now let me ask you another question on guns. I was a cosponsor of the Juvenile Justice bill, with Senator Hatch as the main author. We wrote the gang abatement section of the bill because I am deeply troubled by gangs that have moved across state lines. Some of the gangs that have originated in California are now all over the United States.

And in that bill, we use the RICO laws to set some predicates. And some of the crimes I was interested in adding were trafficking in guns with obliterated serial numbers; possession of machine guns; knowingly transferring a smuggled gun to be used in a drug or violent crime; importing guns with intent to commit a drug or violent crime; stealing guns; transportation of bombs, machine guns or sawed-off shotguns by an unlicensed person; transporting stolen guns; possession of illegal assault weapons; and stealing firearms from a licensed dealer, importer, manufacturer or collector.

The point of adding these crimes as RICO predicates was to give law enforcement the ability to seize the assets of violent gangs and increase penalties for gangs conspiring to commit these and other crimes.

Now, it is my understanding that you worked to strip the bill of these predicates. My question is why.

ASHCROFT: Well, first of all, let me say that in the event the bill passes with those predicates, I will defend the bill and instruct the department to defend the bill and its constitutionality.

There were a number of individuals that expressed to me serious reservations about the RICO applications in the bill. RICO has been a controversial matter that has been questioned by members of this committee on both sides in terms of potential abuses, even gaining the attention of ACLU, which has challenged the application of RICO in these settings. Those were the reasons that I had challenged the wisdom of including those in the bill and the effect of its inclusion on the ultimate passage of the bill.

ASHCROFT: As attorney general, I would provide instruction to the solicitor general, and others in the department, in the defense of actions to support the bill. It's clearly within the range of items that would be the responsibility of the attorney general to support.

FEINSTEIN: I believe my time is up.

Thank you very much, Senator, I appreciate that.

LEAHY: Senator Grassley, who is the ranking member and incoming chairman of the Finance Committee is still tied up at the secretary of the treasury hearings.

We will go to the distinguished senator from Arizona, Senator Kyl.

Incidentally, I would note before Senator Kyl starts, when Senator Grassley is able to rejoin — we all understand he has to be gone. When he does, I've discussed with Senator Hatch, he would then become the next Republican to ask questions.

SEN. JON KYL, R-ARIZ.: Thank you very much, Mr. Chairman.

Mr. Chairman, I'd like to cover three things, if I could, in this round of questioning. First of all, I'd like to make a comment about some statements that Senator Kennedy made, and if Senator Ashcroft wishes to respond, to afford him the opportunity. Secondly, to ask a question about nomination standard. And third, if there is time, to get into the issue of victims' rights.

First of all, Mr. Chairman, Senator Kennedy in his opening statement launched a litany of attacks against Senator Ashcroft, some of which Senator Ashcroft had an opportunity to address. In my opinion, most of these attacks had the effect of distorting Senator Ashcroft's record, and I think that they were unfair.

First of all, Senator Kennedy said that Senator Ashcroft — and I'm quoting now, these are direct quotations from the transcript — "strongly opposed school desegregation." Now, that's not true from what I understand. And Senator Ashcroft did have the opportunity briefly to testify that he strongly supports desegregation, believes in integration and protecting everyone's civil rights.

Secondly, Senator Kennedy said that Senator Ashcroft, and again I'm quoting, "strongly opposed voter registration in St. Louis."

KYL: Now, apart from being obviously incorrect on its face, Senator Ashcroft also had some opportunity to explain that he does not oppose voter registration in St. Louis. In fact, the etiology of that charge was legislation that he vetoed having to do with voter registration policies in the state, one of the bills being strongly recommended for veto by predominately Democratic public officials.

Third, Senator Kennedy charged that Senator Ashcroft did not support our laws concerning access to contraception and a woman's right to choose. Here I simply note that while I don't think that Senator Kennedy was inaccurate in the way he described Senator Ashcroft's positions necessarily, there is an implication that's left that is inaccurate.

While it is true that Senator Ashcroft, as a legislator, sought to change some of the law, he said then and has had further opportunity and amplify, in response to Senator Feinstein's question, that in his very different role, as the lawyer for the American people, that he would fully enforce the law as it exists.

Fourth, Senator Kennedy said that Senator Ashcroft, and again I'm quoting, "is so far out of the mainstream that he has said that citizens need to be armed in order to protect themselves against a tyrannical government," end of quotation. Now, the way that that charge was made, made it sound very irresponsible for anyone to take such a position and it made it sound like this was something that Senator Ashcroft was very concerned about and, therefore, very much distorted his views.

The charge was obviously out of context. The correct context — and this is something that Senator Ashcroft did not have an opportunity to respond to. If my characterization is inaccurate, I ask him to please to add to what I say. But the remarks that he's referring to, I believe, are those that occurred before a hearing of the Constitution Subcommittee of this committee, which Senator Ashcroft chaired, and during which he observed that the Second Amendment conferred individual rights upon citizens.

And here is his quotation, the full quotation from that hearing — it was a resuscitation of the views of James Madison the father of our Constitution — and here's what Senator Ashcroft remarked: "In Federalist 46, James Madison, who later drafted the Second Amendment, argued that the advantage of being armed, which the Americans possessed over the people of almost every other nation, would deter the new central government from tyranny," end of quotation.

As we know, James Madison was the primary author of much of the Constitution. And I frankly think it's a stretch to consider the founders and James Madison out of the mainstream, but don't take it from me.

Senator Feingold, during his questioning, among other things, said this — and this is a quotation from the transcript: "I listened carefully to every word you," meaning Senator Ashcroft, "said. And I reserve the right to change my mind after the transcript, but I believe I agree with every single word you've just said." Continuing the quotation, "The purposes of the Second Amendment includes self- defense, hunting, sport, and some certainly would say, as would I, the protection of individual rights against a potentially despotic central government. The Second Amendment was clearly intended to counterbalance a distrust of and to protect the right to defend against an oppressive government."

Mr. Chairman, while there is certainly room for us to debate Second Amendment and gun control issues — and we've had robust debates about that — I think it goes too far to characterize a position that was held by President Madison, Senator Ashcroft, Senator Feingold and a lot of other scholars on the issues, as outside the mainstream.

KYL: And, in fact, I suggest it may say more about Senator Kennedy's locus in the spectrum of American public opinion.

Fifth, Senator Kennedy said that Senator Ashcroft, quote, "opposes virtually all gun control laws." And he had some opportunity yesterday to explain his view that that is not true and to further expand in his answer to Senator Feinstein just a moment ago. He supports the Brady law; voted to require mandatory background checks for all gun purchases at gun shows; to prohibit firearms in a school zone; to prohibit those convicted of domestic violence from possessing a firearm; drafted the juvenile assault weapon ban that passed the Senate 92 to 2; and supports President-elect Bush's policies to aggressively prosecute those who buy guns illegally, sell them illegally or commit crimes with guns.

And finally, Senator Kennedy said that Senator Ashcroft, and I'm quoting here again, quote, "doesn't respect the right to free speech under the First Amendment."

Now, Mr. Chairman, you can differ with Senator Ashcroft on some issues, but I think it's not responsible to charge that he doesn't respect the right to free speech under the First Amendment. I think he's made it very clear that he will enforce the law and that he's been an outspoken defender of the First Amendment for many years.

Senator Ashcroft, I hope that I have correctly characterized your views. Have I done so and is there anything you would like to add?

ASHCROFT: Well, first of all, I'm grateful to you for having been so careful in your approach to these matters, and I appreciate the opportunity for the clarification.

SEN. EDWARD M. KENNEDY, D-MASS.: Mr. Chairman, I would hope that, after Mr. Kyl's time has been allocated, that I'd have a chance to respond, in terms of fairness.

LEAHY: Under the normal practice, when there is such direct reference by one senator to another senator on the panel, the senator from Massachusetts will be given time to respond. That time will not come out of either Senator Kyl's or Senator Kennedy's time.

KYL: Mr. Chairman, I would hope that we could establish a process here, however. It is not appropriate to throughout charges, and when there is a response to those charges by a senator rather than Senator Ashcroft that that would unbalance the time that each of us on the committee have to present our questions and our statements.

LEAHY: We are trying to find our process and neither senator will lose on their time as a result of that.

KYL: Senator Ashcroft, let me ask you. There were attempts yesterday to define, by senators here on the dais, an Ashcroft standard for confirmation of Cabinet nominees. Perhaps rather than defining that standard for you, it would be appropriate for you to define the Ashcroft standard.

KYL: Could you tell the committee what you believe is the appropriate standard for the confirmation of Cabinet or sub-Cabinet nominees?

ASHCROFT: Thank you, Senator.

I think it is one of the solemn responsibilities of members of the Senate to make judgments and to participate with the president of the United States in providing the staffing of the Cabinet-level positions and a variety of other positions.

In my six years in the United States Senate, approximately almost 1,700 — I think it's 1,686 — presidential nominees have come before the Senate, both judicial and nonjudicial, of course. Of that 1,686, I opposed 15 of them. Of President Clinton's 230 judicial nominees, I voted to confirm 218.

In fact, I never opposed a president's Cabinet nominee. Larry Summers, Alexis Herman, Bill Richardson — clearly, there were policy differences in that respect, but I never opposed the nominee. The president is entitled, in my judgment, to assemble a Cabinet that reflects his policy views.

Notwithstanding these facts, Chairman Leahy suggested that my opposition to these nominees reflected an inappropriate standard of review. And the suggestion seems to be that any nominee with whom I differed failed to garner my support. I just want to make it clear that differing with a nominee did not mean they didn't get my support.

Consider the case of Bill Richardson. In 1996, he was nominated by the president to be the United States ambassador to the United Nations. As Senator Biden and others will recall, he came before the Senate Foreign Relations Committee, on which I sat. I had real policy concerns. We differed on important issues, such as international family planning, UN peacekeeping operations, and the U.S. funding of a rapidly expanding UN bureaucracy.

When asked about administration plans to help retire the U.S. debt, Richardson asked the committee to keep an open mind, and I did.

ASHCROFT: I supported his nomination despite a significant lobbying effort by some groups. Richardson was not an exception. He was part of a larger role — in Chairman Leahy's words, "a standard." I examined the candidates' record in light of the position for which they were nominated, then I made an objective determination based on the facts.

For federal judicial nominations seeking lifetime tenure, I looked for individuals that understood the difference between interpreting the law and legislating from the bench. For the position of surgeon general, I looked for someone whose career reflected high ethical standards of the profession. Finally, in the case of William Lann Lee, I considered carefully whether the nominee would enforce the Supreme Court's most recent ruling on racial quotas.

Although my review contemplated the nature of the job and the varied responsibilities, the standard consistently ensured that the candidates understood the requirements of the job. I simply wanted to ensure that a judicial candidate understood the judicial role, that law enforcement candidates understood the responsibility to enforce the law of the land, and this was not an overly demanding standard in my judgment. It led me to approve 1671 of the president's nominees and every one of his Cabinet nominees.

KYL: So, Senator Ashcroft, would it be fair to say — and I do not mean to put words in your mouth — that simply differing on ideological grounds with a nominee was not, in your view, a reason to vote against a nominee?

ASHCROFT: I think it would be a real stretch for members of this committee to think that I agreed completely with 218 judicial nominees of the president which I voted for. I, obviously — I doubt if the Clinton administration would be doing the kind of job it wanted to do had that been the case.

But I believed that it was appropriate to have differences of opinion with those individuals and differences in philosophy and differences in understanding, and to recognize and respect them, and to vote for their confirmation.

KYL: Thank you.

I'd like to conclude with the matter of victim's rights, something that both Senator Feinstein and I have worked on very hard — and I must say, with your strong support, which I appreciate very, very much. And I know Senator Feinstein does as well.

KYL: Let me go back. You actually worked to gain support of a Missouri constitutional amendment on crime victim rights, is that correct?

ASHCROFT: That's correct. Missouri has a very substantial victims' rights framework, which I think would be enhanced by a federal victims' rights amendment. And that's the reason I had worked to try and find a way to try to get that kind of thing in place federally.

KYL: And just so members of the committee will know, I came to you. You chaired the Constitution Subcommittee. I had to talk to you about our amendment, and you were very willing to conduct a hearing so that we could get our amendment to the full committee and to the floor of the Senate for it to be considered. Again, I thank you very, very much for your cooperation in that regard.

ASHCROFT: Well, I hope I was very accommodating to you.

KYL: Well, you were, but also you helped us to do that in a very timely fashion. I appreciate that.

My time is just about up. But perhaps you could just make a conclusory statement. There is a long list of things that you have done to assist us in the development of the constitutional amendment and to gain funding for victims' rights, to add to the law other protections for victims' rights, a whole litany of things that we could talk about here. But perhaps, just a short comment on your commitment to supporting victims' rights would be appropriate here.

ASHCROFT: Well, if the Justice Department is to be focused on justice for all Americans, there is a need for justice for those who have been offended, as well as those who are the offenders. And the victims' rights amendment and the victims' rights movement is designed to help us have balance in this respect.

As you well know, one of my clear efforts was to make sure that we have a recognition that people can be victimized even if they are not physically abused or assaulted, particularly older Americans who are victimized by fraud and other scam situations. They need to be protected in victims' rights legislation, and that was part of one of the things I sought to do.

I commend both you and Senator Feinstein for your effort in this respect.

Leaving the enactment arena was not a matter of my choice. And so, I will no longer have the ability to sort of advocate in a way for issues like that, that I did previously, but I commend you for your efforts.

KYL: Thank you very much.

KENNEDY: Mr. Chairman, I'd like to have time to respond to the senator, without the time being charged to either side, please, since there was a direct assault, in terms of representations that I made.

LEAHY: Following the normal procedure, you can.

KENNEDY: Mr. Chairman, this is the condemnation of the messenger. My good friend from Arizona doesn't like the message, but the message is out there. And that is what the message is we have to have, what is before this committee. And let's just come back for a minute. I know that the senator has asked about state involvement in the desegregation cases, in the voluntary cases in St. Louis, and he has responded yesterday and he responded today, and he's wrong. Plain, simple wrong.

Now, this is what the 1980 Adams case says. Senator Ashcroft says the state was not involved in that case. This is what the Adams v. U.S., 1980 — the city and the state were jointly responsible for maintaining a segregated school system. In reaching this decision, we note that Missouri state Constitution had mandated separate schools for white and colored children through '76, and the state — of which he was attorney general — had not taken prompt and effective steps to desegregate the city schools in Brown.

1982, the state again protests liability for this. We again note that he — the state and the city board, already adjudged violators of the Constitution, could be required to fund the measures, including measures involving a voluntary participation of the schools. The state was involved.

The fact is, Senator Ashcroft didn't listen to the judges, saying that the state was involved. That's the fact, Senator. And I don't retreat on that. I said it yesterday and I'll say it again today.

And I would hope that he'd have a more complete answer, because it is clear, and any fair-minded person reading those cases will find that to be so.

Secondly, I don't retreat in his opposition to failing to meet his responsibilities to register voters in St. Louis. He vetoed one bill, and the senator listed various Democratic officials saying, "Well, we're glad we vetoed it because it was only targeted on St. Louis."

Then, the next year, did Senator Ashcroft do anything to try and include registration? No. What happened? The legislature in the state said, if he's going to veto it because it just applies to St. Louis, we'll apply one that goes to the whole state. And what does Governor Ashcroft do then? Veto it again.

And what's been the bottom line on it? The fact that tens of thousands of blacks were not able to participate in the voting. That happens to be relevant, Senator, because we've just gone through a national debate and discussion and focus on the question of whether minorities are going to be able to vote. And there are current investigations on that issue.

That might not be important to you, Senator, but I think it's important to the quality of the person that is going to be the head of the Justice Department. And I don't retreat one step on it.

Now the Senator comes back to the question on guns. The questions on guns, fine. We talk about the questions, the list, on the questions on the guns.

KENNEDY: Now, Senator Ashcroft voted against closing the gun show loophole, said he would have voted to oppose the assault weapons ban. He'll have an opportunity to give this president, whether they want to reauthorize the assault weapons ban. I wish he had, in response to earlier question, to show how interested he is in enforcing it, say, "And I'd be glad to recommend to the president, when it expires, when we're going to recommend that he extend that the next time." I would have given him an opportunity to say that.

He's voted twice against child safety locks. He's voted against the ban on the importation of high ammunition magazines, voted twice to weaken existing laws by removing background checks. And he led the campaign for concealable weapons that even child molesters who've been convicted in Missouri would be able to acquire, that was defeated by the people of Missouri. And you wonder why we bring up the issue?

And, Senator, he used those words that I quoted yesterday. Senator Ashcroft used those words, besides calling James Brady, who was shot in the assassination attempt of President Reagan, a loyal Republican, distinguished citizen whose life has been battling those wounds, and you call him the leading enemy of responsible gun owners.

And then you went on, and I said that Senator Ashcroft is so far out of the mainstream, he has said citizens need to be armed in order to protect themselves against the tyrannical government in our government. Our government tyrannical? If the senator from Arizona doesn't know the difference between the British insurrection at the American Revolution and this government that has been formed under James Madison and the Constitution — there is a significant one.

Now listen to this. Listen to what he said is — indeed — and this is quote. This is Senator Ashcroft. "Indeed, the Second Amendment, like the First, an important individual liberty that in turn promotes good government. A citizenry armed with the right both to possess firearms and to speak freely is less likely to fall victim to a tyrannical central government than a citizenry that is disarmed from criticizing government or defending themselves."

Listen just to what Gary Wills, a Pulitzer Prize winner, wrote about that. Gary Wills, a Pulitzer Prize winner, has written, "Listen, only a madman, one would think, can suppose that militias have a constitutional right to levy war against the United States, which is treason by constitutional definition under this."

I think this nominee owes an apology to the people of the United States for that insinuation, talking about our government now being the source of a tyrannical oppression. That's what I think, Senator. I don't retreat. I don't retreat on any one of those matters.

I could take other time, but, Mr. Chairman, I will close at this time.

KYL: Mr. Chairman, I'll be brief, if I could as a matter of personal privilege...

KENNEDY: Well, then I'll reserve time too then...

LEAHY: Following our procedure, the senator from Arizona has a chance to respond.

KYL: Simply because Senator Kennedy made some comments directly to me about matters not being important to you, Senator — meaning to me — I respond that all of these matters are important. It is totally appropriate to raise the issues. What I objected to was what I considered to be the mischaracterization of Senator Ashcroft's positions. And every one of my references to Senator Kennedy were direct quotations taken from the transcript. Nothing was misquoted at all.

Without getting into each of the different substantive issues, which Senator Ashcroft ought to have the opportunity to do, I simply would note here that it is important for us to raise the issues, as Senator Kennedy and others have done, to have a calm and rational discussion of all of the import of those issues with respect to Senator Ashcroft's nomination, and to carefully examine how he will apply and follow the law as attorney general.

But I think as — primarily since most of us are lawyers here — it's very important for us to be careful about the language that we use. And therefore, Senator Kennedy, when you say, "Well, that may be important to you, Senator," of course it's important to me. And when you talk about — you wonder why we bring up these issues, of course it's appropriate to bring up the issues.

I'm concerned here about mischaracterization, and I would assert that when you just now suggest that Senator Ashcroft was asserting that the United States government is an tyrannical government, that that is not an accurate representation of his views under any reading of what he has said or listening to what he has said.

So, I'll conclude in that.

KENNEDY: Well — 15, 30 seconds — these issues are perhaps painful to be examined. Perhaps they are. But they should be. They should be. Each and every one of those issues ought to be examined, Senator.

And I, with all respect, I reject — if you don't appreciate the way that I present it, I can accept that. But I want to make it very clear that I would restate those. And I would be glad — I won't take the chance at this time; I will on the floor of the United States Senate — to take as much time as necessary, and it may take some time to debate those particular issues.

LEAHY: The chair is about to take a five-minute break, unless the nominee wishes to respond to any of the colloquies that have been going on between the distinguished senator from Massachusetts and the distinguished senator from Arizona.

LEAHY:

The distinguished senator from Wisconsin, Senator Feingold, is recognized for his round of questions.

SEN. RUSSELL D. FEINGOLD, D-WIS.: Thank you, Mr. Chairman.

Senator Ashcroft, we worked together well and cooperatively on the Constitution Subcommittee of this committee, and I can't help but say, after the exchange earlier, that I'll miss working with you on that subcommittee. But I am relieved that you will not have a vote on those constitutional amendments anymore, because we had a very strong disagreement on that, but it was a very polite disagreement.

I'd like to spend my time in this round talking primarily about judicial nominations and civil rights.

And, first, on judicial nominations — I've said this to you before — I think the actions of the this committee with respect to the judicial nominations of President Clinton were inappropriate. I believe the committee acted inappropriately in allowing nominations to languish for months and years without even a hearing. It seemed, as I've said before, that some didn't even accept the results of the 1996 presidential election. I think a terrible wrong was done to qualified judges and lawyers, like Bonnie Campbell and Helene White and Kathleen McRee Lewis.

Senator Ashcroft, one person whose nomination was never acted upon in the last Congress is Roger Gregory, a lawyer from Richmond, Virginia. President Clinton nominated Mr. Gregory for the Fourth Circuit Court of Appeals, and I know that you're familiar with that because we did discuss it in our meeting.

Last month, President Clinton appointed Mr. Gregory to fill that Fourth Circuit position during the congressional recess, and, under this recess appointment, Judge Gregory will serve until the end of this congressional session unless he is confirmed by the Senate, in which case, of course, he would be on the bench for life.

He has therefore become the first African-American to serve on the Fourth Circuit in history. And, Senator Ashcroft, recess appointments have been used in the past to integrate the federal bench. A. Leon Higginbotham and Spotswood Robinson, the first African-Americans to sit on the Third and D.C. circuits, respectively, were both recess appointments by President Johnson in 1964. And President Kennedy used the recess appointment power to make Thurgood Marshall the first African-American judge on the Second Circuit in 1961. All of these appointments were ultimately confirmed to full life terms.

Senator Ashcroft, do you see a problem with the circumstances that, in the year 2001, there is not a single African-American who has ever been confirmed for a life-time appointment to the court of appeals for the Fourth Circuit?

ASHCROFT: Senator Feingold, I believe that we should try to get the best-qualified individuals available for judicial positions, and that we should try make sure that our judiciary reflects the kind of population that we have in the country. It's important to do.

When I was governor of the state of Missouri, I took special care to try and make sure that we appointed individuals who hadn't previously had access to judicial positions. That's why I appointed the first two women to the Court of Appeals benches in Missouri — the first black to the Western District Court of Appeals, the first woman to the Supreme Court — and why I set a record in appointments during my time as governor for appointing African-Americans to the bench.

I think it is important that we have individuals and I think there are high-quality individuals representing every quadrant of our culture, and I want to make my understanding and firm belief in that clear. And I would hope that we would have a capacity to see in virtually every aspect of our judicial system — in every aspect — scratch the word virtually — the kind of racial diversity which makes up America.

So I don't see any problem in — maybe I've forgotten the question — I would welcome— I would like to see greater diversity in settings like that.

FEINGOLD: Given your record as you've described it, surely the fact that there has never been an African-American in the Fourth Circuit, which I understand is the largest percentage of any circuit in the country, would trouble you. So I would specifically ask you, to the extent you will be involved, will you support Roger Gregory's nomination and press for confirmation by the Senate so he can serve for life as do the other judges on the circuit? And, therefore, would you recommend that President Bush not withdraw the nomination?

ASHCROFT: When the president of the United States announced his designation of me as the next attorney general, he indicated to me he expected me to give him legal advice in private and to give it to him. I owe him that respect and that honor.

I think I can say to you that the kind of advice I will give him is likely to be reflected in the kind of effort that I've made when I've had appointing authority. And if the president of the United States chooses to send that name forward for nomination, I will enthusiastically work to make sure that confirmation is achieved.

FEINGOLD: Thank you, Senator. I have high hopes for that one.

And now I'd like to turn to the federal death penalty and the broader subject of the death penalty. President-elect Bush supports the use of capital punishment, as I understand you do. While a majority of Americans continue to support the death penalty, a majority of Americans are also increasingly alarmed by the lack of fairness and reliability in the administration of this ultimate punishment. The system is prone to errors.

For example, since the 1970s, our nation has sent — at last count — 93 people to death row who are later found to be innocent.

Senator, do you acknowledge that our justice system has made mistakes and that innocent people have been convicted and even sentenced to death?

ASHCROFT: I acknowledge that individuals have been sentenced to death and have been convicted whose convictions have been overturned, and their convictions and sentences were inappropriate when made.

FEINGOLD: Thank you. And then, let me follow that by indicating, as you well know, on December 22, 2000, at the press conference announcing your nomination to be attorney general, you and President-elect Bush were asked a question about the federal death penalty system and whether a moratorium on executions is warranted at the federal level. And I was relatively pleased with President-elect Bush's measured response. He says he supports the death penalty when it's administered fairly, justly and surely.

And in that regard, I would ask if you agree with President Clinton that the gravity and finality of the death penalty demand that we be certain that, when it is imposed, it is imposed fairly?

ASHCROFT: I think it is a very serious responsibility, and it should be only after a very reliable process of integrity has been undertaken. When I served as governor of the state of Missouri, I had a rather awesome responsibility, when the death penalty was reinstituted in my state, of being the last evaluator of the fairness and integrity of the system.

Having sat in that setting and having felt that responsibility, I take very seriously doing what we can to make sure that we have thorough integrity and validity in the judgments we reach.

FEINGOLD: Well, in light of that answer, I will ask if you will support the effort of the National Institute of Justice that is already under way to undertake the study of racial and geographic disparities in the administration of the federal death penalty that President Clinton deemed necessary.

ASHCROFT: Yes.

FEINGOLD: Thank you for that.

Will you continue and support all efforts initiated by Attorney General Reno's Justice Department to undertake a thorough review and analysis of the federal death penalty system?

ASHCROFT: I thought that's what you were referring to in the first instance, but the studies that are under way, I'm grateful for them. When the material from those studies comes, I will examine them carefully and eagerly to see if there are ways for us to improve the administration of justice. I have absolutely no reason, in any respect, to think that we want to turn our backs on a capacity to elevate the integrity of our judicial system, especially in criminal matters, and most importantly in matters that are capital in nature.

FEINGOLD: So those studies will not be terminated?

ASHCROFT: I have no intention of terminating those studies.

FEINGOLD: Thank you, Senator.

Now, let me turn to a third area that you and I have discussed on a number of occasions, the issues of racial profiling. At the hearing on this bill last year, I was very pleased to hear you say that you believe the practice of racial profiling is unconstitutional, and I believe you've repeated that several times this week. You also said that we need to find out how big the issue is and that this bill — the one that I sponsored with Senator Lautenberg — represented a good start. You said that with some suggested changes you could support the bill. And we had some discussions following that hearing in which we talked about your changes, and frankly we agreed to your changes, but in the end you never joined as a cosponsor of the bill. But here we are today.

If confirmed as attorney general, would you support this bill and encourage its passage in the House and Senate?

ASHCROFT: First of all, I want to commend you for your work in this respect. The hearing which you assembled was my hearing, I was the chairman, and you came to me and asked me if I wanted to address this serious issue and I said, "Please, you move forward to do it. You know the territory." It was the first hearing, I believe, in the United States Senate on this practice. And not only were you there, but Senator Kennedy participated, Senator Torricelli was present.

I stated at the hearing that I think racial profiling is wrong. I think it's unconstitutional. I think it violates the 14th Amendment. I think most of the men and women in our law enforcement are good people trying to enforce the law. I think we all share that view.

But we owe it to provide them with guidance to ensure that racial profiling does not happen. I look forward to working together with you to try to find a way to do that.

The president-elect of the United States — unless I heard him incorrectly in one of the debates that I was watching — said very clearly that he rejected the idea that people would be dealt with on the basis of their race. In my current position, I can't endorse any specific legislation, but I worked with you and you know that I felt good about what you were doing and that, frankly, I talked to you about specific items. I believe that I suggested some ways that the bill could be improved, clarifying that the study is compiled from materials voluntarily collected, which I understand is the intent of the bill.

FEINGOLD: Absolutely.

ASHCROFT: Expanding the kind of data that the attorney general reviews and clarifying that nothing in the bill changes any burdens of proof for parties in litigation...

FEINGOLD: In light of those points, which we certainly agreed to, would you support this legislation?

ASHCROFT: Those were the kinds that I personally thought were appropriate and would have made the bill, if in fact they finally got done. My recollection is not clear. I don't know how I can more clearly say to you that this is a matter that troubles me.

There was an indelible moment in the hearing, as a matter of fact. And it wasn't the sergeant that came; it was the videotape of his son. He had the sergeant who was taking his son across one of our states stopped twice. And I certainly agree with that.

FEINGOLD: Let me just repeat though, because I think you're going as far as you can to say you'll support this bill; Senator Kennedy said at the hearing, this bill couldn't possibly be more modest. All it is about is collecting data. If there is any seriousness on your part or the part of the president-elect about racial profiling, this is a very easy bill to support. I again have high hopes.

As attorney general, what other steps would you take to eliminate racial profiling?

ASHCROFT: Well, as it relates to enforcement by the Department of Justice, I would do my best never to allow a person to suffer solely on the basis of a person's race. As you well know, there are responsibilities for enforcement that are intended to the Justice Department. While we have talked about responsibilities of state and local law enforcement officials, it is important that the federal government be leading when it comes to respecting the rights of individuals and the Constitution. I will do everything I can to make sure that we lead properly in that respect.

FEINGOLD: Switching to another area, should a law called the McCain-Feingold law pass and come to the president's desk and he signs it, will you vigorously support that law in your role as attorney general in terms of its constitutionality, your role in advising the solicitor general?

ASHCROFT: Well, there are lots of things that I disagree with that I believe it would be the responsibility of the attorney general to defend vigorously in court. I have to look at specific legislation with that in mind. I disagreed in policy on that bill, but I believe it's most — it would be hard for me to imagine that the bill does not survive the kind of scrutiny which would provide an instruction to the solicitor general to defend the bill in every respect.

I failed to support the bill because of policy reasons and reservations about the Constitution, but I had not concluded that it couldn't survive muster. And I would expect, depending on the bill, how it comes out, it's my responsibility to defend the enactments of the United States Senate.

There's another little caveat on that. If the enactment of the United States Senate seriously impairs the prerogative of the executive, that presumption in favor of Senate and House abates somewhat. And that was true as it related to this Justice Department, which had a different view of the line item veto than did many members of the Senate and the House.

Pardon me. I've misspoken again. I was thinking of my time as a senator, and I correct myself. I'm sorry to have done that.

But I would expect to defend the laws enacted by the Congress vigorously. And I wouldn't see any reason to expect that McCain- Feingold or Feingold-McCain — pardon me, sir — would be any different.

FEINGOLD: Thank you, Mr. Chairman.

LEAHY: Thank you, Senator.

And as I announced earlier, the distinguished senator from Iowa, wearing his hat as incoming chairman of the Finance Committee, has been at the hearing for the secretary of the treasury this morning. And he has been able to come back with us, and I understand there's no objection for him to ask his questions at this point.

SEN. CHARLES E. GRASSLEY, R-IOWA: First of all, to the chairman and to my colleagues, allowing me this special privilege to probably go out of turn, I appreciate very much the opportunity and want to congratulate the attorney general-designee on the forthrightness with which you have answered questions thus far. And I have only heard more on television than have heard in person, but I think you're doing what needs to be done, and that is to show your ethical and moral uprightness, and that is to do what the oath of office requires.

And you're trying to quell the concerns of the members of this committee, as you should, and I think that you're doing it adequately. And I hope as time goes on, more members will feel your sincerity.

First of all, there's already been some questions on antitrust asked. One was on airlines, mergers and the enforcement of the antitrust laws in regard to that, so I'm not going to get into that area. But I do want to associate myself — I think it was Mr. Kohl, my staff told me, that had asked those questions. I want to associate myself with those concerns. I'm sure that those are concerns, being from small-town Missouri as you are, you understand the same concerns that we have in Iowa.

I would also start with the issue of agricultural antitrust, agribusiness antitrust. And here, again, I think serving with you in the United States Senate and knowing a large part of Missouri's economy is agriculture, I'm sure you have sympathy towards some of the things I am going to ask. But at the same time, I know that we have antitrust laws that are 110 years old and to some extent I think that they need to be amended. But that's not really so much the issues I'm going to discuss with you, but how you look at the existing law.

I'm extremely concerned about increased agribusiness concentration: reducing market opportunities, obviously, fewer competitors in the marketplace and then, consequently, the inability of farmers and producers to obtain fair prices for their products. I've also been concerned about the possibility of increased collusive and anticompetitive activity and I know that the farmers in Missouri are also worried about these issues and that you share the farmers' concerns about competition in agriculture.

The Antitrust Division of the Justice Department enforces federal antitrust laws. The current administration, while it paid lip service to farmers, really hasn't dedicated time and resources to agriculture competition issues. So I'd like to get a commitment from you, as much as you can give me, understanding you work for the president of the United States, that the Antitrust Division, under your watch, will pay heightened attention to any possible negative horizontal and vertical integration implications of agribusiness mergers and acquisitions that come up for review before your department.

I'd also like a commitment from you that the Antitrust Division will aggressively investigate allegations of anticompetitive activity in agriculture and that would include agribusiness, a step above the producer of agriculture. Could you give me an assure that the agricultural antitrust issues then — this would just be one question — would be a priority for this Department of Justice, your Department of Justice?

ASHCROFT: Well, I thank you for your leadership in this area. You rightly mentioned that, as a neighbor, when I had the privilege of serving in the Senate, some of the difficult times that producers have faced because of consolidations and mergers, which have limited the sources or the places into which they can sell their products, have been a real challenge, and my record is pretty clear on this.

I sponsored legislation to try and elevate the understanding of the Antitrust Division in the Justice Department about agricultural issues.

Legislation would have placed people solely responsible for focusing on agriculture in that position.

I also would indicate that I'm aware of the fact that there are other agencies that act in this respect. The Packers and Stockyards Act needs enforcement, and we need the right personnel, I think. And at least that has been my position legislatively when I had the privilege of being in the Congress.

I thank you for framing your question with the understanding that I'll be part of an administration. And when it comes to policy issues, I'll be guided by the administration.

But this is a law enforcement issue. And I think it's fair for me to say that I'll enforce, to the best of my ability and with a perspective that understands some of these challenges that I don't think have been thoroughly understood previously in the antitrust evaluations, merger evaluations. At least, I'll want to make sure that they are understood. Whether or not they have been previously is a matter for debate.

I want people who are assessing proposed mergers and consolidations to not only look on the consumer for impact but to look at the producer for impact because I think competition has to be viewed on a pretty broad scale.

It is with that in mind that I will try to work with the antitrust laws to make sure that we continue to have a competitive marketplace for agriculture.

GRASSLEY: I have already written to the present attorney general and the antitrust division about my concern about the Tysons-IBP merger. And I know that you aren't there yet. You can't do anything about it. And all I can do is urge adequate enforcement of the laws. So I would ask you to take a special look at and, as bet you can today, assure me that the Antitrust Division under your watch will carefully scrutinize this specific transaction so that farmers and consumers can be confident that competition will not be harmed.

ASHCROFT: I am pleased to say to you that I will welcome you letters when I'm — if I am confirmed and if I have the privilege of serving as the attorney general, and that I will give attention to the enforcement of these laws.

I don't want to make a statement in this hearing today, which would affect the value of these entities in any way...

GRASSLEY: I know you can't.

ASHCROFT: ... positively or negatively as they are significant enterprises. But my intention is to enforce the law relating to antitrust effectively and appropriately. And can assure you that if you call upon me for status reports or advising me to give matters complete and thorough attention, I'll welcome those communications.

GRASSLEY: You refer to some special attention that you would give agriculture the extent to which is appropriate in the table of organization. Right now there happens to be a position in the Antitrust Division that focuses specifically on agricultural antitrust issues. This position was created by the former assistant attorneagribusiness community. Some time ago I requested the General Accounting Office to review the Packers and Stockyards Act enforcement efforts of the Agriculture Department's grain inspection packers and stockyards program that's referred to by the acronym GPSA. The General Accounting Office found that the Clinton administration, despite official warnings and internal recommendations made both in 1991 and then again in 1997, had not made critical changes to GPSA's administrative structure and staff as recommended in these two previous reports; one, previous General Accounting Office report; a second one, the inspector general within the Department of Agriculture.

So then we have a General Accounting Office as much as eight years later saying, "You didn't do what we told you to do way back then." As a consequence, we find the U.S. Department of Agriculture being very ineffective in carrying out its statutory responsibilities to prevent anticompetitive practice in the livestock industry.

GRASSLEY: You happened to join me in introducing a bill which mandated implementation of the General Accounting Office report's recommendation to strengthen the U.S. Department of Agriculture's packers and stockyards program within a one-year timeframe, so that's law.

One of the legislation's provisions requires that what, hopefully, will be your department, the Justice Department, is to assist the U.S. Department of Agriculture in investigating livestock competition violations and enforcing the Packers and Stockyards Act during the timeframe of implementing those recommendations.

Would you be sure that your Justice Department carries out the requirements of that law?

ASHCROFT: Yes.

GRASSLEY: In addition, could you assure me that the Department of Justice will consult with the packers and stockyards division as it formulates effective competition policies and procedures to enforce the Packers and Stockyards Act?

ASHCROFT: Yes.

GRASSLEY: Now I'd like to move on to another interest of mine, because I got legislation passed in this area maybe 15 years ago, and this law, called the False Claims Act, is always under attack.

And this is not something to answer, but I want you to be aware of people in the health care industry, people in the defense industry who will be trying to, through your department, get you interested in amending this act. And if they follow the procedures of the last seven or eight years that they've been trained to do this, as simple as it might sound, the end result is gutting the impact of this legislation.

And this legislation, for instance, in the last month or so, produced an $843-million recovery of fraudulent use of taxpayers' money that went back to the Treasury.

Well, I talked to you privately about this in my office, and so I said I would ask some questions for the record. This act is under constant attack.

Now, the Justice Department can file its own suits, or you can join qui tam-type suits under this legislation.

GRASSLEY: Thus, you as attorney general would be in charge of a good bit of legislation involving the False Claims Act. In fact, all that you want to be involved in, what you don't want to be involved in, a private citizen can bring, and they can do that even if the Justice Department does not intervene. And then, consequently, they are entitled to a share of any judgment or settlement as an encouragement for them to bring forth information about the taxpayers money being wasted.

I would ask one question. I'm concerned that the key people that you will include on your team, meaning the political appointees of the department have a positive attitude toward the False Claims Act. I am referring to the deputy attorney general, the associate attorney general, the solicitor general, and most importantly, the assistant attorney general for the Civil Division.

Before I ask the question, at times during the last eight years that I asked these very same people who were being appointed by President Clinton the constitutionality of the act had not been tested by the Supreme Court. It has been tested and the constitutionality upheld. So previously when I asked questions, I was asking them if they would defend the constitutionality of it. Soon the message got through and I got the message that they would defend it, and they did defend it. And consequently, thank God, the courts backed it up.

So now, I'm asking you that we have the constitutionality of it in place, that you will simply see that your people don't do any destructive action to what is already constitutional.

ASHCROFT: Senator, I believe that the law is in place, the constitutionality has been affirmed and we will treat the law with respect.

GRASSLEY: Thank you.

On bankruptcy, President Clinton vetoed a very important bankruptcy reform bill at the end of the last Congress. Senator Torricelli and I introduced that in a bipartisan way. It passed with a veto-proof margin. But it was pocket vetoed so we didn't have a chance to override.

I hope to reintroduce that legislation in the next few weeks. I anticipate that bankruptcy reform will continue to enjoy broad support in the Congress. Could I count on you to be an ally in getting the executive branch to support this bill and to work with us in Congress to finally get it enacted?

ASHCROFT: Senator, you well know that during my time as the United States senator, when I had an enactment responsibility not just an enforcement responsibility, I supported the legislation and worked to achieve its passage. In terms of determining an agenda, I will work closely with the president of the United States, but I will advise him privately to the best of my ability to help him achieve the agenda that he pursues. And if the president were to agree to pursue this course of action, I would have no difficulty whatever in advancing and supporting this measures.

GRASSLEY: Could I please ask one question? It will just be a short answer, because it's on bankruptcy, but...

LEAHY: The chair will give extra time. Go ahead.

GRASSLEY: Well, just a little while. Now, without the reform bill, the Justice Department, through the executive office of the U.S. trustees, has the power to dismiss bankruptcies that are abusive under Section 707(b) of the bankruptcy code. This administration hasn't made this a priority. Would you direct the executive office of the U.S. trustees to make enforcement of Section 707(b) of the bankruptcy code a priority?

ASHCROFT: Senator, this is not an area of expertise for me, and I would have to study this and confer with you and ask for advice from people in the department before I could make a determination about it. I simply have not studied this. And this is an "I don't know" answer.

GRASSLEY: OK. Well, what I'll do is I'll follow up with you, because you will study it, I know. And then, we'll be able to discuss it.

ASHCROFT: If you ask me to study it, Senator, I can assure you that I will.

GRASSLEY: Would you please study it? And would you discuss it with me again?

ASHCROFT: I'd be delighted to, Senator.

GRASSLEY: And it doesn't necessarily have to be before I vote for you for attorney general.

ASHCROFT: Well, that's good to know. Thank you.

(LAUGHTER)

LEAHY: In case the nominee is keeping count — I thank the senator from Iowa. I know he's trying to juggle two important things today, and I appreciate it.

I was thinking, we'll go to one more Democrat and one more Republican, and we have two of our — well, one former colleague and one current colleague here. I thought we'd have the two members do their questioning. That would be Senator Schumer and Senator DeWine.

ASHCROFT: And if the president were to agree to pursue this course of action, I would have no difficulty whatever in advancing and supporting this measures.

GRASSLEY: Could I please ask one question? It will just be a short answer, because it's on bankruptcy, but...

LEAHY: The chair will give extra time. Go ahead.

GRASSLEY: Well, just a little while. Now, without the reform bill, the Justice Department, through the executive office of the U.S. trustee, has the power to dismiss bankruptcies that are abusive under Section 707(b) of the bankruptcy code. This administration hasn't made this a priority. Would you direct the executive office of the U.S. trustee to make enforcement of Section 707(b) of the bankruptcy code a priority?

ASHCROFT: Senator, this is not an area of expertise for me, and I would have to study this and confer with you and ask for advice from people in the department before I could make a determination about it. I simply have not studied this. And this is an "I don't know" answer.

GRASSLEY: OK. Well, what I'll do is I'll follow up with you, because you will study it, I know. And then, we'll be able to discuss it.

ASHCROFT: If you ask me to study it, Senator, I can assure you that I will.

GRASSLEY: Would you please study it? And would you discuss it with me again?

ASHCROFT: I'd be delighted to, Senator.

GRASSLEY: And it doesn't necessarily have to be before I vote for you for attorney general.

ASHCROFT: Well, that's good to know. Thank you.

(LAUGHTER)

LEAHY: In case the nominee is keeping count — I thank the senator from Iowa. I know he's trying to juggle two important things today, and I appreciate it.

I was thinking, we'll go to one more Democrat and one more Republican, and we have two of our — well, one former colleague and one current colleague here. I thought we'd have the two members do their questioning. That would be Senator Schumer and Senator DeWine.

LEAHY: Then, we'll hear from Senator Collins and former Senator Danforth.

Senator Schumer, you're recognized. And then we'll break for lunch.

SEN. JEFF SESSIONS, R-ALA.: When do I get to talk?

(LAUGHTER)

LEAHY: Well, we wanted you to be special.

(LAUGHTER)

So we thought probably as soon as we come back from lunch — we have senators to go. I mean, we got Senator Durbin hidden down here at the end, too. And you have two more down there. So we — and Senator Cantwell and Senator Brownback. And so, trust me you all are going to get a chance. This is not going to be an early evening, I would suggest to everybody here. But when we do break, we'll take a one-hour break.

Go ahead, Senator Schumer.

SEN. CHARLES E. SCHUMER, D-N.Y.: Well, thank you, Mr. Chairman, and thank you Senator Ashcroft.

You know, Senator, I sit here and listen to the hearing, and my jaw almost drops. Senator Ashcroft believes Roe v. Wade is the settled law of the land. Senator Ashcroft believes that the assault weapons ban should be continued.

You know, Senator, we fought a lot of these battles in the Senate over the last two years. Where were you when we needed you?

Anyway, let me ask a few more of these specifics to flesh out some of these because they are very important.

The first question is: When did the law become settled — I guess in your mind, I guess. In 1998, you introduced, along with Senators Helms and Smith, a resolution calling for an amendment to the U.S. Constitution to ban abortion, even in the cases of rape and incest. And the amendment would also outlaw several of the most common contraceptive methods. In that same year, you said: "As a legal matter, the absence of any textual foundation" — this is a quote — "for the trimester framework established in Roe has resulted in an abortion jurisprudence that is marked by confusion and instability. It demonstrates the dangers of building a legal framework on the quicksand of judicial imagination rather than the certainty of constitutional text."

So I guess the first question that gnaws at me some is: In your testimony you said it was settled law, and yet fairly recently you were fighting hard to change it, to overturn it — a position I disagree strongly but respect your view on it.

SCHUMER: Can you explain the evolution in the belief?

ASHCROFT: Thank you for the question. We do disagree on this and, obviously, this is one of those questions upon which I believe reasonable people can disagree.

Frankly, if the law weren't settled, one wouldn't need a constitutional amendment to change it, if one were wanting to change it. And so the fact that I've proposed a constitutional amendment indicated to me that it's not something that's going to be adjusted in another way. And in so doing, that was part of a role that I had as a member of the Senate as an enactor of the law, rather than an enforcer of the law. There are lots of settled laws and there are constitutional amendments designed for the specific purpose of overturning settled laws.

I think the court has been signaling an increasing — and this makes reference to — I'm forgetting which of the members of the panel asked me earlier. But in its most recent case the court signaled it denied certiorari for reconsideration. And I think the Supreme has said — that's the Stenberg case, I believe.

SCHUMER: That's what I think, too.

ASHCROFT: It said, we don't want to be bothered with this. Frankly, I think it is not wise to devalue the credibility of the solicitor general in taking things to the court, which the court considers settled. And that's why I explained my other answers the way I did.

SCHUMER: I appreciate the answer.

ASHCROFT: I just want to indicate that if you think I have changed to believe that aborting unborn children is a good thing, I don't. But I know what it means to enforce the law, and I know what I believe the law is here, and I believe it is settled.

SCHUMER: So let me ask you this just to follow up. So if the solicitor general came to you and you were attorney general and said I'd like to argue a case to overturn Roe — for instance, in the Nebraska case, in the Stenberg case I think it was Justices Thomas and Scalia who, in dissent, it was just a 5-4 case, encouraged more cases to overturn the law. Would you urge the solicitor general or would you not allow the solicitor general, who would be under your jurisdiction, to bring such a case?

ASHCROFT: I don't think it is the agenda of the president-elect of the United States to seek an opportunity to overturn Roe. And as his attorney general, I don't think it could be my agenda to seek an opportunity to overturn Roe.

SCHUMER: And would that apply if, let us say — because that was a 5-4 decision, the Nebraska case, the Stenberg case. But let us say one of our Supreme Court justices stepped down and a new appointment was made and it was at least speculated or viewed that that new justice and a different — and one of the justices who stepped down would be one of those in the five majority — that this new justice would have a different view, would have sided with the dissent. Would you still urge the solicitor general to not bring the case?

ASHCROFT: Well, as I said before, I don't think it's the agenda of this administration to do that. And as attorney general, it wouldn't be my job to try and alter the position of this administration.

SCHUMER: Let me ask you a second one related. Let us say that Governor Thompson becomes the secretary of HHS and he seeks your legal advice on banning stem-cell research, research where we've had great divisions about, but research extremely important to hundreds of thousands of people and their families with Parkinson's Disease and other diseases. Would you urge Governor Thompson, but then Secretary Thompson, given that Roe v. Wade is settled, to continue to allow stem-cell research to continue?

ASHCROFT: I will provide him the best assessment and instruct the Department of Justice to provide him with the best assessment of the law as it exists, upon which he can base a decision within the parameters of the statutory framework guiding his activity.

SCHUMER: But pursuing that a little, sir, if I might. If you believe Roe is settled and certainly stem-cell research would fall within the confines of the first trimester, then wouldn't your advice have to be to continue stem-cell research? And why couldn't you tell us that here today?

SCHUMER: If not, then I would like to know what "Roe being settled" means.

ASHCROFT: The way I answered the question a moment ago is the way I want to answer it again, but I'll answer it in these words.

I will be law-oriented and not results-oriented. I will — that's my pledge as I move toward the attorney general's office, and, of course, I can't make good on — I don't want to be presumptuous. I understand that there is a confirmation process. But I will provide my best advice regarding the law, including the law as expressed by the Supreme Court in Roe v. Wade.

SCHUMER: So, if — just to pursue it a little bit further — and I'm just trying to flesh things out here. I'm not trying to put you on the spot. These are issues of great importance to so many of us.

If the legal opinion, the predominant legal opinion, was that stem-cell research was allowed, was part of the settled law of Roe, that would be your guiding light here, not an ideological belief that we shouldn't allow it?

ASHCROFT: I will give them my best judgment of the law, and, if the law provides something that is contrary to my ideological belief, I will provide them with that same best judgment of the law.

SCHUMER: OK, I'll — I don't think I can push you any further, although I wish the answer would be a little clearer, but...

ASHCROFT: I'm just not going to issue an opinion here.

SCHUMER: I understand.

ASHCROFT: I will, with all deference, I just want to say...

SCHUMER: I made it hypothetical that, if the law would agree.

Let me go to another one. The president asks you advice whether rape victims should be allowed the right to choose — it comes up in some context that we probably, you know — I don't want to — I don't think it's necessary for the purposes of this question to outline the context — would you advise him that rape victims should continue to be allowed their right of choice even though, ideologically, you would be opposed, because, again, Roe is the settled law of the land?

ASHCROFT: If he's asking me for legal advice, I will provide him with my best judgment. It will not be results-oriented; it will be law-oriented. And I will also answer the president in private, as he has requested me to do.

ASHCROFT: And I don't want to be less than cooperative, but I don't want to try and go through a list of all the potential questions the president might ask me and try and tell in advance someone other than the president what answer he's going to get.

SCHUMER: Right, but the reason — and I understand that and appreciate your desire to do that. Of course, though, when you say Roe is the settled law of the land, that has lots of different implications that would be quite contrary to the advocacy views that you had while you were United States senator. We would agree to that, right?

ASHCROFT: Well, it's very clear to me that the settled law of the land protects rape victims. I mean, it's clear that the settled law of the land gives virtually anyone any opportunity they want to to have an abortion. I mean, it's an unrestricted right. And I would advise him in that respect as to what the law is.

SCHUMER: Let me ask you a series now, similarly, on gun control. I was very glad to hear that you would support the continuation of the assault weapons ban which Senator Feinstein carried in the Senate and I carried in the House, so it's obviously important to me.

I would just like to ask, in terms of the Second Amendment — and while some might not believe it, I believe in the Second Amendment. I do not agree with those who think the Second Amendment should be interpreted almost in a non-existent way, just for militias, and then we should broadly interpret all the others. But, just like you can't scream "fire" in a crowded theater, that's a limitation on our First Amendment rights, there are limitations on the Second Amendment as well. And some of my friends believe there should be no limitations, and that's where I disagree with them.

But let me ask you this, these four issues, do you think any of them violate the Second Amendment: The Brady law?

ASHCROFT: No.

SCHUMER: The assault weapons ban? I think you answered that.

ASHCROFT: No.

SCHUMER: Licensing and registration, which many states obviously have now?

ASHCROFT: I don't believe that — if the Senate were to pass it, I would defend it in court and argue its constitutionality.

SCHUMER: Argue for its constitutionality?

ASHCROFT: Yes, just so.

SCHUMER: Thank you.

SCHUMER: Now, how about just your own personal view in a different, you know, on closing the gun show loophole, the Lautenberg amendment? I know you supported a 24-hour closing, but many of us supported a 72-hour because we thought at gun shows 24 hours wasn't enough to do an adequate check, particularly since most of them occur on the weekends. Would you support a 72-hour closing of the gun show loophole?

ASHCROFT: You know, I believe in closing the gun show loophole — what I would like to see us do is to improve our capacity to respond to inquiries a lot more rapidly. I think it's pretty clear that, at least my personal view has been for the past several years, that we need to fully implement our ability to provide instant checking. And I think that's the best way of handling that, and I think doing that is something that is achievable. So my approach to this would be to have the department exercise as much of its energy as it can to close the loophole by virtue of improving our capacity to have instant checks that are reliable, valid and workable.

SCHUMER: I agree with you. I have no problem with InstaCheck when it's available and when it's working. But in the past, some at least have used the lack of InstaCheck availability in many states...

ASHCROFT: Full party...

SCHUMER: Let me just finish and I'll flesh out and then we'll go to the next one. Some have used the lack of availability of InstaCheck in many states to stand in the way of a law — 72-hour law, longer waiting period, because you just couldn't get the checks out on the computer that quickly, because state records were not up to date. So again, let me repeat, if we found that in a good number of states, and it is the case, that the InstaCheck system were not yet available, would you support a 72-hour wait for closing the gun show loophole, which most of us regard as a rather modest step?

ASHCROFT: Well, the problem with 72-hour wait is that gun shows frequently last about 72 hours, and that's been a problem. In terms of saying that if you're going to provide — no one can buy a gun, that tension, I think, is one that I'd want to respect and I'd try and accommodate that. It's not my desire to shut down this setting.

If I'm not mistaken, I might stand correction here, I think when the Juvenile Justice bill came back it had the Lautenberg amendment in it. And I think I voted for the Juvenile Justice bill in that setting and that may be an answer to that question.

SCHUMER: I think, Senator, and obviously...

ASHCROFT: On final passage.

SCHUMER: ... we don't want to hold you to every little bit, but I think it never got back from conference. Maybe Senator Leahy...

ASHCROFT: Pardon me, I didn't mean get back, I think I meant — they're telling me I meant final passage. And on final passage, I did vote for it and it had Lautenberg in it.

May I just add this little bit?

SCHUMER: I think what may have...

(CROSSTALK)

ASHCROFT: Let's clear — I voted for it, I think in that setting. And I'm not sure about that.

But what I am sure about is that if it's passed, I'll defend it. And I'll not only defend it, but I'll enforce it, and I'll enforce it vigorously.

SCHUMER: But in terms of your own opinion, do you think that this 72-hour check — you voted I think, and I — the record could correct me, as well. And I don't want to — you know your record better than I do. I think you may have voted against the amendment, but then voted for the final bill.

ASHCROFT: I think that's correct, sir.

SCHUMER: Your staff guy is shaking his head yes.

ASHCROFT: Well, you can see him better than I can.

SCHUMER: So I would trust him.

ASHCROFT: You don't have to turn around to look at him and I do. That's your hard luck, because I don't have to look at him, only in rare instances.

(LAUGHTER)

SCHUMER: So has your position evolved any on the 72-hour check?

ASHCROFT: Well, I guess what I'm saying is that my position, as I leave the enactment arena, was mixed. I probably, as a stand-alone provision, voted against it, but wasn't so opposed to it when it came back in the final product that it would stop me from voting for a very important bill. I guess that's a little bit of an academic question.

Now, the voters of Missouri settled my ability to vote on those bills when I was not re-elected to the Senate.

I would vigorously defend and enforce the measure.

SCHUMER: And almost, from point of view of argument — it just follows from the argument, you would not recommend the president veto a bill that had the 72 hour gun show loophole in it? Given that you voted for it in the past...

ASHCROFT: I will advise the president, to the best of my knowledge, on legal matters. They will not be result-oriented; they will be law-oriented advices. But I will give those to him upon his request. And I really want to try and publicly start to hypothetically discuss all the potential of questions he might ask me and try to deliver the advice here first. I just don't think that's proper.

SCHUMER: Thank you.

LEAHY: The chair will note for the record that the Juvenile Justice bill, which passed overwhelmingly from the Senate — it went to conference. And we never — other than a symbolic meeting — the conference committee never met. And the Juvenile Justice bill died at the end of the Congress.

And the press accounts, which I believe are accurate, said that it died because it had the gun show loophole in it. If the gun show loophole was taken out, it would be allowed to go forward. With it in, the various gun lobbies said that we would not be allowed to pass it.

And — the senator from...

SESSIONS: Mr. Chairman, to put a little spin on that a little different. Senator Hatch had a gun show loophole bill that a number of people favored. And I think it passed the first time. On a close vote, the Lautenberg amendment passed, the full Senate voted, and, as I understand it, Senator Ashcroft voted to support the Lautenberg amendment.

And it never came out of conference because that amendment was rejected by the House. The House would not accept it. And your side would not agree to any compromise, and the good Juvenile Justice bill that a lot of us worked on never came out and up for debate. And that's my view of it. But everybody has a different view.

(CROSSTALK)

HATCH: Let me add by saying that the fact of the matter is we couldn't get a consensus to pass it. It was that simple, and let's all work to try and get something done this next term.

LEAHY: Well, the fact of the matter is we never had a conference, so we couldn't seek a consensus, so we couldn't vote.

HATCH: We knew it was a waste of time.

LEAHY: I've never been able to predict votes that well.

HATCH: I've been pretty good about it.

UNIDENTIFIED: Could we have regular order, Mr. Chairman?

LEAHY: We haven't had it yet. Why should we start now?

(LAUGHTER)

The distinguished senior senator from Ohio.

SEN. MIKE DEWINE, R-OHIO: Mr. Chairman, thank you very much.

Senator Ashcroft, the good news is: When you get to me, you're getting pretty close to lunch here.

Let me just say that I think most of us here can agree — we're talking about the Juvenile Justice bill — that 95 percent of that bill was, frankly, not very controversial. And let's hope that we can get that Juvenile Justice bill, Mr. Chairman, passed this year.

Senator, what I would like to do in the time that I have is talk about a few issues that I know are going to be coming in front of you as attorney general.

DEWINE: These are issues that I have a particular interest in. I think you do as well. To save time, let me go through them. There are four or five of them, and then if you could comment at the end, I think it'd probably be the simplest way to do this.

The first has to do with what is referred to as international parental kidnapping, an issue that I'm very concerned about and an issue that has gotten a lot of publicity in the last few years. And, quite frankly, to be candid, it's an area where I don't think that the current Justice Department has been aggressive enough. And this is something I have said publicly with the current attorney general and we have talked about that. And I would hope that you would be, as attorney general, more aggressive in this regard.

What are we talking about? We're talking about the situation where a U.S. citizen marries a foreign national, they have children or a child, they get divorced, sometimes they don't get divorced. One day the American citizen wakes up and the child is gone, the other parent is gone. The other parent has gone back to his or her country of origin.

I have noticed, quite frankly, this has not been a priority of the Justice Department. I would hope it would be with your Justice Department. I think it is many times an issue of neglect. It is a question of not setting the right priority. And, frankly, many times, it's a question of ignorance or just lack of understanding of the issue. I think it can be remedied by training with assistant U.S. attorneys across the country, the setting of priorities from the Justice Department and, frankly, coordination with the State Department, because it's an issue that the State Department hasn't been very aggressive in regard to either. That's number one.

Number two is an area that I know that you have worked on in the past and I have worked on the past and that is a setting of priorities for the Justice Department in regard to gun prosecutions. I'm talking now about the case where we have a convicted felon, who uses a gun or owns a gun, which is against federal law today. I would hope that the Ashcroft Justice Department would say that this is a priority and that you will go after these individuals as the Bush administration did.

A related area in regard to guns is when guns are used in the commission of a felony. To be attorney general is to, obviously, as has been said many times here, set priorities. I can't think of anything that's more important to the safety of the public than to get people who use guns in the commission of an offense off the streets. The U.S. attorney can play a very unique and special role in that regard, and I would hope that that would be one of the priorities of your administration.

A third area is what I refer to as crime technology. It's an area that I've been involved in for, frankly, over a decade now.

DEWINE: It is very simple, it is very basic, but it's very important. And that is to make sure that we drive the resources down to local law enforcement, so that not just the FBI but that local law enforcement has access to the good DNA work, has access to automated fingerprints, had access to ballistic comparisons and has access to good criminal records. This is the basics of law enforcement.

It is something where the federal government can play a unique role because only the federal government really can give the assistance to all local jurisdictions with the understanding that what happens in Xenia, Ohio, and whether or not we put our records into the system, whether or not we have a good automated fingerprint system, frankly, will affect the ability of the Missouri police to solve a crime, if that defendant happens to go from Xenia to St. Louis.

This is an area that you've been involved in, I've been involved in. We passed a bill several years ago that you supported, that I wrote, to provide an umbrella as far as authorization to get this done.

And, quite candidly, I will just ask you to comment on that and hope that when it comes time to present your budget, you would look at that very favorably, because I think it is basic law enforcement that will in fact make a difference.

The fourth area is the issue of mental health. We are seeing more and more people in our criminal justice system who have mental health problems. It is something that every law enforcement officer in this country understands and knows about. Part of it has to do with the deinstitutionalization that has occurred in the last few decades, part of it is the nature of society, but it's something that I think in our criminal justice system we have to address.

We were able to pass last year a bill that I was involved in writing which has to do with providing some assistance to local courts in regard to mental health. I wonder if you could address that one?

And, finally, I will go back to an issue that has been raised by Senator Kohl — it's also been raised by Senator Grassley and several of my other colleagues — and that has to do with the antitrust enforcement.

As you know, I am the chairman of the Antitrust Subcommittee, ranking member is Senator Kohl. I guess that means Senator Kohl is the chairman this week. He and I have worked very, very closely together on antitrust issues. We think they're very, very important. We think that ultimately they determine our ability to compete in the world and our ability — one of the things that makes us different as a country from other countries is that we have good antitrust laws.

I am particularly concerned, and I'm not going to ask you to comment about this, because I know that this is something you're going to have to study and I also know it's something you're going to have to work with whoever is the new head of the Antitrust Division of the Justice Department.

DEWINE: But I am very concerned about the consolidation in the aviation industry. This is something I think we have to look at. It is, I think, a potential direct threat to consumers when we are talking about getting down to potentially just three, possibly, major airlines in this country, four. We have some real competition issues.

So I would just use this opportunity again not to ask you to comment on it really, because I don't think it's fair for you to comment at this point, but just maybe to put you on notice, this is something that I'm going to be looking at. We're going to hold hearings on our Antitrust Subcommittee within the next few weeks. And we're going to take a very, very close look at that.

So, John, those are five issues that I think clearly you're going to be dealing with; five issues that I think, as the attorney general, you will be confronting. And I would just like for maybe some brief comments in the time you have remaining to tell us maybe some thoughts about each one of those.

ASHCROFT: Thank you, Senator DeWine.

I must say that, starting with the first issue, the international parental kidnapping problem is one that you have highlighted and you have brought to the attention of America in ways that have been very helpful, I think. Many of us would be in a circumstance not to be very affected by this, and it would be an easy thing to just I suppose overlook. I commend you for your work there.

I would be very pleased to work with you in this respect. And the idea of making sure that where inter-agency cooperation could be beneficial either through the Department of State or other departments of the government to remedying these tragic circumstances, this is the — since it's not as prevalent as some other problems, I guess some folks don't view it as a serious problem. It reminds me a little bit of Ronald Reagan's definition of a recession. In a depression, it's a recession. If your neighbor loses his job, it's a depression. If you lose your job, if it's your child here, this becomes a national issue very quickly.

And I thank you and look forward to working with you on it. And to the extent that we could enlist other aspects of the federal bureaucracy and the government to act with us to do what's right, I'm very pleased to confer with you.

ASHCROFT: Gun prosecution: The prosecution of gun violence is very important to me because I think it's essential to public safety. What I think we have is clear indication and evidence that, if we prosecute gun crimes, we have the greatest effect in elevating the safety and security of citizens in this country. And it's one thing to have a law on the books that prohibits certain kinds of gun purchases, and if you have hundreds of thousands of gun purchases that are denied because of it, but then you don't prosecute the people who are denied the purchase for making the illegal attempt, we really haven't done anything but force them into the illegal market.

If my memory serves me correctly, there is an Indiana situation where someone had attempted to make an illegal purchase, not prosecuted. Went into the illegal market, acquired a firearm and shot an African-American individual leaving church. That case sticks in my mind.

I think the context of the gun purchase requirements are very important. In a technical sense, those are against the law, and they're criminal acts.

But people who actually perpetrate crimes using guns, obviously, need to be a focus for enforcement effort. The most famous of these is the Project Exile, at least for me — best known for me. If you can drive across the river here, you see the billboard that says you're on notice if you use a gun in the commission of a crime, elevated penalties are going to be a consequence for you.

And it's not just in Richmond, Virginia. I worked hard when I was a member of the Senate to get special funding, additional funding, for U.S. Attorney Audrey Flyseck (ph) in St. Louis, because she has a project called Project Ceasefire. I can't answer, for the details of all these projects, but I think it's largely the same thing. You deal affirmatively, aggressively and constructively to say, we will prosecute those who commit crimes using firearms.

Third issue — and I look forward to that — I think is the crime technology issue. During my time as governor and attorney general, we sought through the creation of agencies and capacity capability in our state the ability to integrate our effort in a national coordination of data so that we could apprehend criminals.

This is a matter of great concern to me because our society is so mobile. And it even has concerned me as it relates to juveniles, because in my home state of Missouri our population is focused on the borders. Kansas City is one of the two largest cities; St. Louis is the other. And we share those borders with other states, and people move back and forth across those borders and the interstate. Availability of information is a very important thing. And to have it available — that kind of moving from one jurisdiction can take place on a bicycle.

ASHCROFT: But criminal activity can move from one part of the county to another part of the county now very easily. And whether it's AFIS, an automated fingerprint identification system, or whether it's the next generation, I think, with DNA identification, and frankly, I think, not only for the apprehension of criminals, but for the establishment of innocence and guilt with greater certainty, I think these are very important matters that relate to civil liberties as well, that I think it's for our system to elevate the integrity and the likelihood that we get the truth when we make a conclusion very important.

The mental health area is an important area. Immediately I thought of Senator Feinstein's comprehensive methanphetomine antiproliferation measure, which he and I had the privilege of working together on. It's a $55 million program but there was — a significant part of that was for treatment. When I talk to the prosecutors and the justice officials at the state and local level, they tell me that 70-80 percent of all the people that we incarcerate for criminal behavior committed crimes because they were involved with drugs, substance abuse of one kind or another. I think if we don't understand that remediation of that particular problem is part of this and that it's a mental health-related aspect of this, I think we're kidding ourselves. That's why I was pleased in the measure that we cosponsored and was passed that we had an attention to that aspect of things.

Last but not least, and I hope I've given these items the direct level of attention, you talk about the Antitrust Division. I will urge the president to appoint an individual who has a capacity to work well in this area. Antitrust is a refined part of the law. I spent some substantial amount of time in antitrust considerations on several issues when I was the state attorney general. And the president, I think, will respond. It happens to be one of the things you'll have a chance to influence because the advice and consent function of the Senate is operative there, and certainly I would welcome your input and the opportunity to confer with you about making a constructive response to that challenge.

DEWINE: Senator, thank you very much. Thank you, Mr. Chairman.

LEAHY: Do you have anything else?

DEWINE: No, that's fine. Thank you.

LEAHY: Incidentally, some of the press have asked if there's anything symbolic about being in the Caucus Room. I don't mean to deflate anything, but it is more the luck of the draw. We started a system of having committee rooms; the Rules Committee, as Senator Ashcroft knows, assigns where you go.

LEAHY: There is a — I think they do it by computer. But in any event, the Foreign Relations Committee, which will be hearing General Powell's nomination, needed a large room. There had been some public and press attention to this hearing, which indicated the need for a large room. We both asked for a large room. This one was being used yesterday for something else. Long way around to say that it's coincidence that we are here. I don't want anyone to draw else wise from it.

I would ask our colleagues, Senator Collins from Maine, and our former colleague, Senator Danforth, to come forward and join Senator Ashcroft at the table, as I announced earlier.

Once they have finished their statements, and any questions that there may be from them, and we will then break for lunch. When we break for lunch, it will be a one-hour break.

Senator Collins, please, go ahead.

SEN. SUSAN COLLINS, R-MAINE: Good morning, Mr. Chairman, members of this distinguished committee. I'm pleased to be here today on behalf of my friend John Ashcroft. And I thank those hearty few who have remained to hear my testimony before you break for lunch.

Let me begin by saying that if I were to tell the members of this committee that I had a candidate for attorney general who had attended one of the nation's finest undergraduate institutions and law schools, and had served for eight years as state attorney general, eight years as a governor, and six years as a United States senator, I doubt there would be much by way of concern about that candidate's professional experience.

Similarly, if I were to point out that this candidate was also an individual of tremendous integrity and high personal values, there would be little doubt that the candidate met the ethical standards for the position.

That is exactly the case that we have here with John Ashcroft. Nevertheless, his nomination has generated a controversy noteworthy for its intensity. Given John's record of public service and his personal integrity, it is fair to conclude that the genesis of this controversy is his political philosophy.

Concerns have been raised that John is simply too conservative to enforce the laws with which he disagrees. In responding to these concerns, let me first make clear that I have disagreed strongly with John on a number of issues.

COLLINS: Our views on abortion rights, among many other issues, are far apart. But I have absolutely no doubt that John will fully and vigorously enforce the laws of the United States regardless of his personal views. He not only has given me personal assurances but also has testified under oath before this committee that he will do so.

This situation is not unique to John Ashcroft. Virtually every attorney general has had to enforce laws with which he or she has disagreed. Our most recent attorney general is no exception, as Senator Thurmond has pointed out. Despite her personal opposition to the death penalty, Attorney General Reno has approved federal death penalty prosecutions in 176 cases. Moreover, a fair examination of John's record shows that, both as attorney general and as governor of Missouri, John has enforced and acted in support of laws with which he has personally disagreed.

Several examples of this have already been provided to the committee on issues ranging from abortion to gambling. Ultimately, this question comes down to our assessment of how John will exercise his judgment. Will he use his discretion wisely, fairly, and appropriately? I would suggest to this committee that the best proof we have that he would do so can be found in the decisions that John made last November. The circumstances surrounding the Missouri election are well-known to all of us. The significance of the seat to the composition of the Senate is obvious. That's why I'm addressing Senator Leahy as Mr. Chairman today.

And the determination with which John campaigned demonstrated how intent he was on winning this race. And yet, when tragedy intervened at the end of the campaign, John acted in a manner that we can all admire, and that was a testament to his good judgment.

COLLINS: John could have pursued a legal remedy for which he had strong grounds.

After all, the Constitution sets forth just three requirements for a United States senator, and the third is particularly relevant in this case. It expressly states that no person shall be a senator who shall not, when elected, be an inhabitant of that state for which he shall be chosen. This constitutional requirement would have given John grounds to contest the election, and many legal experts contend he would have prevailed in court.

Despite his fervent desire to win and despite the fact that the court system was there to provide him with an avenue to continue his quest, John chose not to pursue legal action. Instead, he used his discretion to act in a manner that showed compassion to the family of a political rival and concern for the people of his state — an exercise of discretion that was clearly contrary to his personal, political interest.

Like many Americans, I was deeply moved watching John's speech when he announced that he was conceding the election and that he hoped that the late Governor Carnahan's victory would provide a measure of comfort for his grieving family.

Despite the proliferation of the rhetoric surrounding this nomination, I hope that the American people will have the opportunity to learn about the John Ashcroft whom I know. The dignity and compassion exemplified in that graceful act last November displayed the essence of the man with whom we served in this great body.

Thank you, Mr. Chairman, in your courtesy in allowing me to appear before the committee today.

LEAHY: I thank my neighbor from New England and I will assure her that while I appreciate the appellation of Mr. Chairman, I'm making sure I don't get too used to it.

(LAUGHTER)

And my former colleague, the senator from Missouri, Senator Danforth.

FORMER SEN. JOHN DANFORTH, R-MO.: Mr. Chairman, members of the committee, thank you very much for the opportunity to testify.

I would like to address the one question that has come up repeatedly in these hearings and repeatedly in the media, and that is whether John Ashcroft's philosophical views, whether his political views would in any way circumscribe his ability and willingness to execute faithfully the responsibilities of attorney general of the United States.

And I would like to speak from 30 years, roughly 30 years, of knowing John Ashcroft. I have known him since before he ever got into politics, before he held any public office. John and I and Kit Bond were in Missouri politics, in Missouri government, when we were in our early 30s. And all three of us were holding public office for a time, Kit as governor and John as state auditor and I as attorney general. And we were the reform movement in state government.

And I want to tell you what the nature of that reform was, because I think that it sheds light on the basic question before the committee as to John's ability to faithfully execute his responsibilities.

DANFORTH: What we inherited in state government was the old-fashioned spoils system; what we inherited was government that was based on politics. And we began, starting with the state attorney general's office — much smaller, of course, than the Justice Department, but really a comparable office — we began to reform the very nature of state government.

And the reform was that instead of hiring people on the basis of their politics, we would hire people on the basis of their ability. And we would require a day's work for a day's pay. And we would ask people only to interpret and enforce the law. And we would not impose political views on them.

So we didn't ask people what their politics were. And I have spoken to a law partner of mine who worked for John Ashcroft and asked him whether the rule that I had when I was state attorney general was the same as John Ashcroft's. And indeed it was. He said he told me about a colleague of his in the attorney general's office who admitted to John, "I'm a Democrat." And John said to him, "That's not relevant to this."

Now, I think that this an important point to make because it seems to me that someone who is just absolutely bent on superimposing his political views on an office would at least ask people about their politics before he hired them. And John did not do that.

DANFORTH: And then in the operation of the office itself, the same law partner of mine, who served with John, circulated a letter that was addressed to Senator Hatch, and I want to submit the letter for the record. It's signed by 18 people who served as lawyers on John Ashcroft's staff.

DANFORTH: And the lawyer who circulated the letter told me he could have gotten many more signatures, but he got 18 and sort of ran out of time. But here is the letter that he addressed to Senator Hatch.

"Dear Senator Hatch: The undersigned are former assistant attorneys general for the state of Missouri, who served in that capacity during John Ashcroft's tenure as Missouri attorney general. We are writing to state for the record that, during our time in these positions, John Ashcroft never interfered with our enforcement or prosecution of the law and never imposed his personal political beliefs on our interpretation or administration of the law we were entrusted to enforce."

That's how he operated that attorney general's office, and I have no doubt that he would do the same in the Justice Department.

I think it has already been referenced in this hearing, but it is, I think, a very good example of how John approached his job in Jefferson City. In 1979, then Missouri Attorney General Ashcroft issued a legal opinion on whether religious material could be distributed on property of public schools, his opinion clearly distinguished between his personal views and his legal analysis. He wrote, "While the advance of religious beliefs is considered by me and I believe by most people to be desirable, this office is compelled by the weight of the law to conclude that school boards may not allow the use of public schools to assist in this effort."

So for John, the weight of the law determined his conduct in office, and not his personal thoughts about desirable actions.

Finally, I'd like to say this based on 30 years of knowing this person: I think it was Senator Schumer who asked yesterday, you know, after all this history as a member of the Senate and fighting all these battles, how can you turn it off as attorney general? I think the same kind of question is asked to a lot of lawyers. If you're a lawyer, how do you turn off your personal feelings? How do you discharge your responsibility zealously to represent a client? It's a matter really of legal ethics, and it's a matter of how the system works.

But when John Ashcroft yesterday in that very dramatic moment raised his hand and said, "When I swear to uphold the law, I will keep my oath, so help me God," I would say to the committee that any of us might disagree with John on any particular political or philosophical point, but I don't know of anybody, and I've not known anybody in the 30 years I've known this person who has questioned his integrity. That is a given. And when he tells this committee and tells our country that he is going to enforce the law, so help him God, John Ashcroft means that.

DANFORTH: That's exactly what he's going to be doing.

So I think that the answer to the question, Mr. Chairman and members of the committee, would his political or philosophical views circumscribe his responsibility to execute faithfully the duties of the office of attorney general of the United States, the answer, in my mind, is absolutely certain: He would in no way superimpose his views on the duties of that office.

LEAHY: Thank you, Senator Danforth. And you've had the unique opportunity of testifying in a nomination hearing twice now in this committee room — once as a senator and, second, as a former senator.

Are there any questions of either of the senators? Any questions either side?

Then we will stand recess until 2:09.

(RECESS)

LEAHY: The distinguished senior senator from Illinois, Senator Durbin, is recognized.

SEN. RICHARD DURBIN, D-ILL.: Thank you very much, Mr. Chairman.

Senator Ashcroft, welcome, again, to the committee.

On the day of your nomination you called me and we talked about this day, and I told you that my first concern was over the Ronnie White nomination for federal district court judge in Missouri. I will have to tell you, Senator, that this has been a bone in my throat every since the day that it happened. I have said this to the press and I've said it to you personally: I think what happened to Judge Ronnie White in the United States Senate was disgraceful.

I am sure that you are well-aware of Ronnie White's background, but for the record at this hearing, I would like to say it so that it's here for all to understand. Ronnie White was the first African- American city counselor in the city of St. Louis. He was the only African-American judge on the Missouri Court of Appeals. He served three terms in the Missouri House, was chairman of the House Judiciary Committee and the Ethics Committee. He became the first African- American to serve on the Missouri Supreme Court in its 175-year history.

It was so significant the St. Louis Post Dispatch said that his appointment was, quote, "one of those moments when justice has come to pass," close quote.

At his swearing-in ceremony, it took place in the old courthouse in St. Louis. Having grown up across the river in east St. Louis, I know the history of that building. That was a building where the Dred Scott case was tried twice and where slaves were sold on the steps of the courthouse. That was a man who was elevated to the Missouri Supreme Court, Ronnie White. That was the context of his elevation.

And as I look at your decision to oppose his nomination, which led to a party-line vote defeating him, I am troubled. I'm troubled by what I think is a mischaracterization of Ronnie White's background, his temperament, his judicial training, his experience on the bench. He came before this Senate Judiciary Committee and said, with a question from Senator Hatch, that he supported the death penalty. When you spoke against Ronnie White on the floor of the United States Senate, you suggested that he was pro-criminal.

Well, I might suggest to you that the facts tell us otherwise. In 59 death penalty appeals, which Judge White reviewed while on the Missouri Supreme Court, he voted to uphold the death sentence in 41 cases, 70 percent of the time. The record also reflects that Judge White voted with the majority 53 times, 90 percent on the death cases before the Missouri Supreme Court.

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

And then there was the Kinder (ph) case, which raised the question as to whether a judge could be impartial; a judge, who, days before a decision relative to an African-American, made disparaging racial comments in public. You said that the case there was about affirmative action and that it was Judge Whijudge's position on affirmative action was irrelevant and what was relevant was what Judge White characterized as "a pernicious racial stereotype."

It's interesting that after you defeated Judge White — the Senate voted him down — the reaction across Missouri. The 4,500 members of the Missouri Fraternal Order of Police wrote: "Our nation has been deprived of an individual who surely would have been proven to be an asset to the federal judiciary." It has come to light that your campaign organization contacted law enforcement officers to enlist them in your crusade against Ronnie White, most of them refused. In fact, the largest organization expressly refused.

I find it interesting that this man, who was so important in the history of Missouri, had such an extraordinary background as an attorney, legislator and a jurist, somehow became the focus of your attention and your decision to defeat him. One of the statements made by one of your supporters should be a part of this record. Gentry Trotter, a Missouri Republican businessman and an African-American, who has been one of your fund-raisers for many years, resigned from your campaign after the vote on Judge White.

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

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

Senator Ashcroft, did you treat Ronnie White fairly?

ASHCROFT: Senator Durbin, let me thank you for your candor in this matter. I did call you either the day or the day after the president nominated me for this job, and you expressed to me as clearly then as you have now your position. And I appreciate that, and I appreciate your feelings in this case.

I believe that I acted properly in carrying out my duties as a member of the committee and as a member of the Senate in relation to Judge Ronnie White.

I take very seriously my responsibility. Pardon me, let me amend that. I no longer have that responsibility. I took very seriously my responsibility as a member of the Senate, and I don't mean to say that I still have that responsibility.

Judges at the federal level are appointed for life. They frequently have power that literally would allow them to overrule the entire Supreme Court of the state of Missouri. If a person has been convicted in the state of Missouri, but on habeas corpus files a petition with a U.S. district court, it's within the power of that single U.S. district court judge to set aside the judgment of the entire Supreme Court of the state of Missouri. So that my seriousness with which I addressed these issues is substantial.

I did characterize Judge White's record as being pro-criminal. I did not derogate his background. I'm not as familiar as you have made us all with his background. It was not my intention to interfere with his background or discredit his background, and, frankly, it's not my intention to comment on his membership on the Supreme Court of the state of Missouri because that's a different responsibility and that's a different opportunity.

Not a single Republican voted for Judge White because of a substantial number of law enforcement organizations that opposed his nomination.

DURBIN: How many?

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

DURBIN: The Missouri Federation is one group and they represent, I think, 70 municipalities. The larger group, the Missouri Chiefs of Police, including the cities of St. Louis and Kansas City, refused to accept your invitation to oppose him. Some 456 different law enforcement authorities came to the opposite conclusion you did as to whether Judge White was pro-criminal. Does that give you pause?

ASHCROFT: I need to clarify some of the things that you have said. I wasn't inviting people to be a part of a campaign.

DURBIN: Your campaign did not contact these organizations?

ASHCROFT: My office frequently contacts interest groups related to matters in the Senate. We don't find it unusual. It's not without precedent that we would make a request to see if someone wants to make a comment about such an issue.

Of the sheriffs in Missouri, 77 of them signed a letter to me saying that I should be very careful in this setting because they had reservations about the way in which Judge White had been involved in a single dissent in regard to the Johnson case.

DURBIN: Senator Ashcroft, I'm sorry to interrupt you, but the Missouri Police Chiefs Association, representing 465 members across the state, including the police chiefs of St. Louis and Kansas City. Their president, Carl Wolf, in an article that appeared in the St. Louis Post-Dispatch on October 8, 1999, said his group had received a letter from your office dealing with White's decisions in death penalty cases. He said, he knows White personally, has never thought of him as pro-criminal. He said, "I really have a hard time seeing that White's against law enforcement. I've always known him to be an upright, fine individual, and his voting record speaks for itself."

ASHCROFT: I would be very pleased to continue to respond to your question. As it relates to my own objections, I had a particular concern with his dissents in death penalty cases. Judge White has voted to give clearly guilty murders a new trial by repeatedly urging lower standards for proving various legal errors.

DURBIN: In which specific cases?

ASHCROFT: Well, let me begin to address a case. In the Johnson case, Missouri v. Johnson, the Missouri Supreme Court affirmed four death sentences for one James R. Johnson, who went on a shooting rampage in California, Missouri.

ASHCROFT: This was during the time...

DURBIN: Senator Ashcroft...

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

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

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

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

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

DURBIN: Please do.

ASHCROFT: And I think it's fair to put the situation in context. I was going to talk about some other items that you mentioned, about the statistics of his dissents. He had four times more dissents than any of the other — than the Ashcroft appointees to which comparisons have been made on the case. And, frankly, I think it's important to note that just statistical numbers about the times you say guilty or innocent doesn't really prove anything. I mean, if we both took a true-false test, we might have equal numbers of trues and falses, but you might score 100 and I might score a zero.

But he obviously — and the first case that I would mention is the Johnson case, the Johnson case with the multiple murders. The sheriff's wife was shot while she was conducting a Christmas party for her, I think, church organization, five times. The murderer shot three law enforcement officers, killing three other law enforcement officers, I believe, and then wounding another law enforcement officer. And the defendant in the case had pleaded — not had plead, but had confessed completely to the crime in a statement that alleged no difficulties or no problems. So that when the case finally was litigated, it was clear that there was no question about whether or not he conducted himself in a way which was somehow excusable.

DURBIN: Senator, didn't the dissent from Judge White come down to the question of the competency of his counsel? And didn't Judge White say expressly in that decision that if he is guilty, then, frankly, he should face the death penalty? There was no question about it.

But if you've read the case as I have, I cannot believe that you would have hired — or would hire if you're appointed attorney general for the United States — the defense counsel in that case to represent our country. The man was clearly lacking in skill in preparing the defense, and that is the only point made by Judge White.

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

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

ASHCROFT: It's part of the necessary grounds, Senator, but I believe mere incompetency of counsel, without any showing of any error or prejudice in the trial against the defendant, does not mean that the case should be overturned. And if you'll read carefully — and I believe you would come to that conclusion — the opinion of the court here, you'll find that the disagreement in the case was what weight incompetency or alleged incompetency should have and the extent to which the trial should be set aside if there isn't any real evidence that the incompetency or the mistake affected the outcome.

DURBIN: Well, Senator, clearly we see this differently, because I am proud that my Republican governor in my state — even though I support the death penalty, as you do, my Republican governor in my state has declared a moratorium on the death penalty. I think he has taken the only morally coherent position, that if we find DNA evidence that exculpates an individual, or if we find a clear case of a capital case where there is evidence of incompetent counsel, it raises a serious question as to whether or not that defendant was adequately represented. And I think that's the point Judge White made.

ASHCROFT: Well, I commend your governor for following his conscience in that respect. I think that's an option for each governor and each person in that setting to make a judgment on.

And I want to make it clear, defense counsel in the Johnson case decided to advance a theory of a post-traumatic syndrome for an individual who had been involved in Vietnam at one time. It was in so advancing that theory, they alleged that the defendant had set up a perimeter of string and tin cans around his house to alert the defendant of anybody coming in, and also that the defendant had flattened the tires on his own car, so as to avoid someone coming in to take his car and use it against him.

When the defense counsel alleged this, they sought to prove that he still thought he was back in Vietnam. Truth of the matter, is he hadn't done that at all.

DURBIN: That was the point that Judge White made.

ASHCROFT: That is the point.

DURBIN: That any competent counsel would have established the police had put in the perimeter. And the defense counsel's defense of mental incapacity was based on a fact that he had not checked on. Incompetent counsel in a death penalty case.

I will just say to you, Senator — we've run out of time here — but for you to reject Judge White based on that decision on that important issue of competent counsel in a death penalty case, troubles me greatly. This is an extraordinary man with an extraordinary background. I think he was treated extremely poorly by the United States Senate, and I'm troubled by that.

I yield to the chairman.

LEAHY: Do you have anything further to say on this? If you wish.

ASHCROFT: Mr. Chairman, I think that it's important for us to understand that alleging a mistake at trial is not enough. We should show that the mistake at trial made a difference or was very likely to make a difference. And there is a standard such in the law of the state of Missouri and there is such a standard in the law of the United States of America. And it's pretty clear that that standard was something that Judge White thought simply should be swept aside.

And that's not my view, that's the law.

Now, the consequence of ruling as Judge White would have ruled in that case, was this: If you and your attorney concoct a lie and it succeeds, you win. But if you and your attorney concoct a lie and it fails, it's incompetency in your counsel and you lose, but you get a new trial.

ASHCROFT: I think we have to look at the result of these cases. Now, I am prepared to talk about a number of other cases that Judge White ruled in and discuss his positions there.

Unfortunately, they're not any less grisly than the four murdered law enforcement officials and their relatives. They reflect, in my judgment, an approach which, if you're one or two of the dissenting judges on the court in Missouri, it doesn't make a difference in the ultimate outcome. But if you turn out to be the sole judge in the federal district court, you have the ability to erase a guilty verdict and provide that a person, once adjudicated guilty for these crimes, is no longer guilty.

Now, I know of no regime anywhere that says merely the detection of an error at trial without measuring its impact — anywhere in the law where that's in effect. And I don't think it should be in effect here.

I believe this is very serious. I believe it's very important. But I don't think there was any reasonable likelihood that the defendant who went in and confessed completely his crimes without reference to any difficulty and without any evidence of involvement in a situation where he was out of control, in a flashback in Vietnam, could later on expect that defense to be sustained.

DURBIN: What I might say, Mr. Chairman, in conclusion here, if I might. It appears that your conclusion about Justice Ronnie White is a conclusion that is not shared by the law enforcement community of the state of Missouri. A man who has an extraordinary background was given, I think, shabby treatment by the Senate because of your instigation, Senator Ashcroft. And I think that is troublesome.

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

SESSIONS: Thank you, Mr. Chairman.

And I welcome you, John, back to the pit. You've been doing a tremendous job, and how you can remain cool and thoughtful when we switch from subject to subject, many of them most complex and many over quite a number of years, is really a tribute to your intellectual capacity and your clear thinking, and I appreciate that. And I think anybody who's watched this hearing from the beginning will see that you have confronted honestly and directly every allegation or complaint and have explained them in a way that makes sense to them and makes sense to me.

And I believe the American people owe you that. I believe this committee owes you that. I believe — I know that there are groups who care a lot about it and have every right to raise issues and complain and ask questions. That's part of this process. I'm sure it's not fun, but it is part of it. And we have to go through that, and I value that.

I would just call, to my friends on the other side, their attention to the fact that sometimes there are conservative groups that attempt to impose views on how a vote should go in this committee. Our chairman, Chairman Hatch, has been approached a number of times to do this or do that on behalf of groups, and he has said, "No," that he is the chairman of this committee and he alone bears a responsibility for making those decisions. And he has conducted it with great integrity and has been able to keep a proper distance from outside groups who might try to dictate an outcome of a hearing, because it's our duty to get to the bottom of that.

SESSIONS: I'd just say that to start with.

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

Now, before I became a senator, I was attorney general two years, but, for 15 years, I spent full-time practicing every day in federal court before federal judges. I have the greatest respect for federal judges. But I can tell you it is a pleasure to go to work before a great federal judge, and I had the rare opportunity to practice before a series of great ones.

But a bad federal judge can ruin your day. It can not be a pleasant experience, and they are there forever. And you can go home and you can be so frustrated that you want to scream, but they are there. They will not be removed. I've often wondered how our founding fathers made such a colossal mistake to give a person a job he can never be gotten rid of.

The only opportunity the American people have to have public input in who this person will be is at a confirmation hearing. So, I think that's what was done in this case, and serious questions were given to it.

There are great powers to a federal judge. They can grant motions, they can deny motions, they can order discovery, they can rule on search-and-seizure issues and those sort of things, some of which you can appeal; many of them either practically can't be appealed or, as a matter of deference the appeals court will give to them, you can't be successful.

The great power in a federal judge — one of the greatest powers in the entire governmental system of this United States is the power of a federal judge, at the conclusion of the prosecutor's case, to grant a judgment of acquittal.

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

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

This Johnson case, I believe is also a big deal. Let's sum this thing up. This defendant, a deputy came to his door because of a domestic disturbance, he shot that deputy several times. He laid on the ground moaning. Then the defendant, Johnson, comes out and shoots him through the forehead, murders him there, goes to the home of the sheriff. The sheriff is not there. His wife is in the house with a party or social of some kind going on. He shoots her five times through the window, killing her. Then goes and shoots another deputy. Then goes and lays in wait and shoots two more deputies out trying to do something about this event.

He was surrounded, finally surrendered, gave a detailed confession, did not say he was having — he thought they were Vietcong or he thought he was in Vietnam, he was under attack. He had driven from place to place as a matter of fact. He did not give that kind of defense. It was a complete confession.

And the defense attorney, I submit, was in a difficult position. Obviously the prosecutor was not going to agree to a plea bargain of less than death in a case like this. If this isn't a death case, there is never a death case in Missouri. He could not give that death case up. So what would he do?

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

From my understanding they were good lawyers. In fact, there was a hearing at a later date on the competency of the counsel in this case, and they were found to be competent.

So they got caught. The truth is that's what jury trials are all about: Who's telling the truth, the defendant or the prosecuting witnesses? They concluded that he was not telling the truth. It was a false defense and they rejected the defense. That happens every day in court all over America.

Now we're going to create — what Judge White did and why it was big time significant was he created a circumstance in which you encourage a defense lawyer to try the most outlandish defense scheme to see if they can get away with it. And if they don't get away with it and get caught, they could ask for a new trial for the defendant.

SESSIONS: That's why this is a big deal.

And I did not like the language that he used that, "Well, maybe this is not insanity," Judge White wrote. He said "it's something akin to insanity." Now, we've got some real problems in this country over getting a clear definition of insanity. After the Hinckley shooting of President Reagan, this Congress dealt with and confronted that difficult question and come up with a much more clear rule for federal court.

To me, his opinion indicated a lack of fully comprehending the importance of a clear definition of insanity in that case, in addition to violating the established law about ineffective assistance of counsel.

And in the exchange, Senator Durbin, between you and Senator Ashcroft, I don't think you do dispute that it is the established law that you must show not only ineffectiveness — which I suppose you could say this was ineffective, since he tried a defense that didn't succeed, but what other defense did he have? But, secondly, if it was ineffective from that technical point of view, you don't dispute that it has to have an impact on the outcome of the trial.

So, that's the established law, I believe, in America, as Senator Ashcroft has articulated, and that's why I think it was a big error.

I didn't like the Kinder (ph) case either. I think that was almost a very strange ruling, so that was, to me, significant.

Now, there was serious concerns about Justice White's reputation for law enforcement effectiveness. Seventy-seven sheriffs in the state signed a petition in opposition to his nomination; that's well over half. I am quite sure many of those were Democratic sheriffs — opposition, writing to Senator Ashcroft, his state senator, opposing that nomination. I think that's very significant.

In addition to that, the National Sheriffs Association opposed the nomination. The Missouri Federation of Chiefs of Police wrote, quote, "We are absolutely shocked that someone like this would even be nominated to such an important position. We're willing to go on record with your offices as being opposed to his nomination and hope you will vote against him."

The Mercer County prosecuting attorney's office wrote, "Justice White's record is unmistakably anti-law enforcement. We believe his nomination should be defeated. His rulings and dissenting opinions on capital cases" — where he did four times as many dissents as his brother justices — "on capital cases and on Fourth Amendment cases" — that's the search and seizure, where there's a lot of daily work done there — "should be disqualifying factors when considering the nomination."

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

LEAHY: Do you have anything to add to that?

SESSIONS: Do you agree?

ASHCROFT: I appreciate your clear explanation of the Johnson case. I think what you have to look for in a case is what will be the rule if the opinion of the judge is embraced. The rule in the Johnson case was, is if you try a really whacked-out theory of something and it's revealed as the lie that it is, then you get a new trial because it was an incompetent or ineffective thing to do at trial. If you succeed with it and get them to believe it, you don't need the new trial.

What bothered me about the case was that the judge basically wanted to lower the standard. And frankly, what bothered me about the senator's articulation of the case, in addition to the fact that — well, was that incompetence alone overturns the verdict.

As a matter of fact, in the Kinder (ph) case — which is another unpleasant case. I mean, this is another case of a woman who was beaten to death with a pipe, after being raped by a defendant who had been seen with the pipe shortly before the rape, and found with the bloody pipe in his hand after the rape. And the defendant's semen had been found in the victim of the rape. And there was an allegation about a statement that the judge had made prior to the trial, in another setting, that indicated that the judge was a person who was biased against African-Americans. And the defendant and the victim were both African-Americans in the case.

ASHCROFT: Now, I don't think there's any question about the fact that judges should ever make statements that reflect racial bias.

I think swift and sure action should be taken to keep individuals like that from being a part of our judicial system if they are biased.

But you have a situation here where there is an alleged bias. I'm not going to debate it. But Judge White said that the alleged bias alone should overturn the murder conviction of that young woman, should set aside the murder conviction, and it didn't matter that there was no error at the trial. None. There was no allegation of any impact of the bias.

As a matter of fact, I believe there was a separate review of the trial by authorities to try and find an indication of bias that affected or otherwise was reflected in the trial and had an impact on the outcome, and they couldn't.

Missouri v. Irvine (ph) is another case. Now this was not about Judge White urging broad, lenient legal rules, but it still caused me great alarm. In order to have a death penalty in Missouri, you've got to be able to say that the crime was committed with cool reflection, torture or depravity of mind, which includes brutality of conduct.

In this case, the defendant went to the victim's residence late one night. They appeared to get into an argument. The defendant stabbed the victim, an older man, in the neck and the upper chest and dragged the naked victim out of the trailer, in front of others by something tied around his neck. The victim had been stripped of his clothes in the interim. I think the victim was propped up against a tree.

ASHCROFT: And the victim said, "Go ahead, kill me, James." At which time the defendant beat the victim in the head four to five times with a brick and walked away. And shortly thereafter, when the victim began to move and to moan, the defendant came back again and beat him in the head with a brick, causing fatal wounds.

Now, I think there's enough depravity of mind and brutality of conduct in that description to satisfy almost anybody. Almost anybody.

But Judge White says, it just barely concur that there's a submissable case of first degree murder here. Well, it's this kind of view, over and over again. There are other cases that I came to the conclusion that this was not a person that I felt should sit in judgment in a setting where the ruling of a single judge could displace the conclusions of the entire Supreme Court of Missouri.

Now, in these settings where he was the solo or with one other judge in dissent, that's a different circumstance, and I don't comment on that.

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

SESSIONS: I thank the chair.

LEAHY: ... and the senator from Illinois.

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

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

SESSIONS: I would just want to say that there was a hearing later on these competent counsel. The judge found him competent and, in fact, said they were highly skilled attorneys, devoted hundreds of hours to the defense. They were privately retained attorneys, not public defenders. They were professional trial lawyers with extensive experience. One had been a leader in the criminal defense bar, another had graduated with Judge White from college. They were all three competent and capable attorneys trying to make the best defense in a difficult circumstance. And I don't think they should be rewarded for failing in that effort.

LEAHY: Thank you.

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

SESSIONS: I will note that, Mr. Chairman.

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

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

SEN. JOSEPH BIDEN, D-DEL.: I thank the chair. I will try not to take even all the time.

And I do apologize to Senator Ashcroft and my colleagues for not being here. Yesterday, I had the privilege of representing the Senate and giving one of the eulogies for our colleague, Alan Cranston, in San Francisco. And that's why I was not here. And then I am, for a very brief fleeting moment, chairman of the Foreign Relations Committee. And I am chairing the committee on the Powell nomination, as we speak.

BIDEN: So that's by way of explanation of my absence.

I asked the chairman and he was kind enough to put in an opening statement yesterday. I just want to read one paragraph from our opening statement.

"You are to become the people's lawyer more than you are to be the president's lawyer. Consequently, questions relating to your nomination is not merely whether or not you possess the intellectual capabilities and legal skills to perform the tasks of attorney general. And not merely whether you're a man of good character and free of conflict of interests that might compromise your ability to faithfully and responsibly and objectively perform your duties as attorney general. But whether you are willing to vigorously enforce all the laws and the Constitution even though you might have philosophic disagreement with them. And whether you possess the standing and temperament that will permit the vast majority of the American people to believe that you can and will protect and enforce their individual rights."

That was my opening statement in 1984 when I was considering how I would vote on the nomination of Edwin Meese. I cite that only to say that my standard that I've applied — and I told you on the phone, Senator, and I appreciate you calling me and us finally catching up with one another — has been consistent for the 28 years I've been a United States senator.

My greatest concern is on questions relating to race. I will try not to tread on the various issues that have been raised here, except to say to you on the last point that I've always applied and that is whether or not the vast majority of Americans will believe that you will enforce the law vigorously on their behalf, is one of my concerns here. Not just whether you will, whether you are believed that you will.

There are only two places that black Americans and all minorities have, over the last 40 years, been able to go with some sense of certainty that their rights would be vindicated and aggressively pursued. One has been the federal courts and some state courts, but primarily the federal courts. The other has been the Justice Department. And I sincerely wish, John, you had been nominated to be secretary of defense, or secretary of commerce, or secretary of state, or secretary of anything but this single job as attorney general.

I will, as not unusual for me, be pilloried by the right and the left for saying this. I find you a man of honesty and integrity. As I said to you, I think you are the classiest person in the last election, the way you bowed out of your race. You did it with class and dignity that was not seen by many Democrats or Republicans who were in your position. And I've always had a good relationship with you. I think you would agree to that.

But I told you bluntly what my concerns were when we spoke and what they are now. For those who suggest that maybe this is a bit of an epiphany, I would suggests that it's been the standard I've applied my entire Senate career.

And I say to folks, it does matter what you're nominated for. For example, if I had — well, let me just say it this way — I'm worried, Senator, about the cumulative weight of items that lend the perception, at least, that you're not particularly sympathetic to African-Americans' concerns and needs. Not just the Ronnie White case, which is of concern to me. Not just the voluntary desegregation order, which was obviously a very contentious issue during your tenure back in Missouri. Not merely your appearance at the Bob Jones University. Not merely your strong opposition to Bill Lann Lee to be the head of the Civil Rights Division. But there seems to be a — not merely your sponsoring an act called a Civil Rights Act of '97, I think it was, don't hold me to that, which said that no longer could preferences be given in employment and federal contracts.

The cumulative weight is what, quite frankly, concerns me. And I raise with you an interview that you did in a magazine — if this has been raised, please tell me, Mr. Chairman, and I'll read it in the record.

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

But a magazine that — excerpts from the magazine that I've asked my staff to get for me, such as "Negroes, Asians and Orientals, Hispanics, Latins, Eastern Europeans, have no temperament for democracy, never have and probably never will."

Or a 1996 article that came with the following claim: "Slave- owners did not have a practice of breaking up slave families. If anything, they encouraged strong families to further slaves' peace and happiness."

Or a 1990 journal article, the same outfit, celebrating former KKK klansman David Duke as, "a candidate concerned about affirmative discrimination, welfare profligacy and taxation holocaust, a popular spokesman for a recapturing of the American ideal."

Or it goes on. After a visit by one of the writers for The Southern Partisan to New York, said, "Where are the Americans? For I met only Italians, Jews and Puerto Ricans."

And the list goes on of these outrageous statements that this magazine carried.

Now, again, by way of context, it may seem, by itself, unfair to ask you about this. But were I going to be the secretary of interior — were I nominated to be the secretary of interior and I had given a long interview or had — with the outfit that's called the Earth Liberation Movement, the one that goes and burns down any dwelling that is on a federal land in open space, or were I to give interviews to and say some of the things you said about this magazine to the People for Ethical Treatment of Animals, if I were going to be head of the Department of Agriculture, I think that most Midwestern senators would have a problem. I think most Western senators have a problem if it were regarding the Earth Liberation Movement.

Well, I have a problem, coming to this Senate, getting involved in politics because of civil rights. My state, to its great shame, was segregated by law. We have not been very progressive until the '70s in my state on these issues. And so, it bothers me.

Now, that's a long background to a relatively short question. You gave an interview to that magazine where you said, "Revisionism" — and I think you have a copy of this. "Revisionism is a threat to the respect that Americans have for their freedoms and liberty that was at the core of those who founded this country. And when we see George Washington, the founder of our country, called a racist, that is just a total revisionist nonsense, a diatribe against American values."

Well, so far, so good.

Quote: "Your magazine also helps set the record straight. You've got a heritage of doing that, of defending Southern patriots like Robert E. Lee, Stonewall Jackson, Jefferson Davis. Traditionalists should do more. I've got to do more. We've all got to stand up and speak in this respect, or else we will be taught that these people were giving their lives, subscribing their sacred fortunes and their honor to some perverted agenda."

In the introduction to that article, they describe you — and you can't be responsible for how you're described, I acknowledge — but in the description of you, it says, "John Ashcroft has made a career of public service in Missouri. After serving..." and it goes on and then says, "that in his short time in Washington, the senator has already become known as the champion of state's rights and traditional values. He's also a jealous defender of national sovereignty against the new world order..." and so on and so forth.

Now I have two questions relating to this, Senator.

BIDEN: One — actually three.

One, were you aware of the nature of this magazine before you gave the interview?

And, two, are you now aware, if you weren't then, of the nature of this magazine?

And, number three, if you are aware now, do you think it was a smart thing to do to give this interview, not just because I'm asking you the question?

ASHCROFT: Thank you, Senator, and I appreciate the candor of your remarks. I also appreciate the kind things you said about me. And if someday there's a President Biden, maybe you'll consider defense and commerce and those other things for me.

(LAUGHTER)

BIDEN: America's in enough trouble right now.

ASHCROFT: Let me make something as plain as I can make it. Discrimination is wrong. Slavery was abhorrent. Fundamental to my belief in freedom and liberty is that these are God-given rights. And we have had the stain of slavery in our past, and I recognize that our nation's history is complicated.

It's hard for me to know how Thomas Jefferson could write, "We hold these truths to be self-evident, that all men are created equal and endowed by their creator with certain inalienable rights, and that among these is life, liberty, and the pursuit of happiness," and, at the same time, be a slave-owner.

And, while he owned slaves, I think his articulation of these freedoms planted the seeds that resulted in ultimately doing away with slavery. And, so, it's complex and complicated.

On the magazine, frankly, I can't say that I knew very much at all about the magazine. I've given magazine interviews to lots of people. Mother Jones has interviewed me. I don't know if I've ever read the magazine or seen it. It doesn't mean I endorse the views of magazines — a telephone interview. And I regret that speaking to them is being used to imply that I agree with their views.

BIDEN: Now, just making clear, John, I'm not saying that. I know you better.

ASHCROFT: OK.

BIDEN: Speaking to them implies, to me, an incredible insensitivity, number one. Number two, speaking to them, learning who they are, and not condemning them after the fact implies a bit of bull-headedness at the least and a — I don't know what else, but it ain't good.

(LAUGHTER)

No, I sincerely mean this. It's a big deal. It's a big deal. You've got 20 million black Americans out there that you're going to be representing. They're going to look to you and say, "Is this guy going to enforce the law?" And then they're going to say, "Wait a minute, this guy finds out that this outfit is this racist, neo- Confederate outfit that writes things about Jews and blacks and Eastern Europeans and immigration, and he doesn't condemn them. He doesn't condemn them."

I mean, look, we've all spoken to people we wish we hadn't. We've even had people — I remember Jimmy Carter, when he had a picture taken in Ohio, and it turns out to be John Wayne Gasey was in the picture. Remember the — but after he found out it was John Wayne Gasey and he got arrested, Carter said, "I condemn the guy."

BIDEN: He didn't say, "You know, well, I'm not going to really have anything to say. I talked to everybody about these things, and John Wayne just happened to be there."

That's the part that confuses me, John. I don't quite understand that.

ASHCROFT: Well, I condemn those things which are condemnable.

BIDEN: Isn't the magazine condemnable? I mean, isn't the magazine condemnable? They sell t-shirts that says, you know, "The Assassin was Right."

ASHCROFT: If they do that, I condemn. I mean, if they sell t- shirts saying that Abraham Lincoln should have been condemned, I condemn that. Abraham Lincoln is my favorite political figure in the history of this country.

BIDEN: Allegedly, they sold t-shirts that pictured Abraham Lincoln with the words, "Thus Always to Tyrants" — the words of his assassin.

Anyway what I still haven't quite gotten, I still haven't quite gotten why — and by the way a lot goes by in a campaign. We all understand that. We've all been in campaigns. And we all get faced with the proposition, "Geez, if I disassociate myself with that outfit, even though I don't like him, is that going to raise more questions?" And I can understand tactical judgments in the middle of a campaign.

But what I couldn't understand is why, right after this, and this is called to your attention, you just don't say, "Boom, boom, boom. I should have never gone to — got a degree from Bob Jones University; I should have never had this interview."

I mean, as you all know, this place loves contrition. I mean I've had my share of having to do it. We all make mistakes. But I don't get it. I don't get it.

And by the way, you know, you're a great supporter of Scalia, as many others are. I mean Scalia said the same things your old buddy did. To illustrate the point, he voted on a case to overturn the death penalty that had imposed on a disgruntled ex-employee of a married couple. The defendant entered the couple's home, shot the wife twice with a shotgun, and then shot and killed the husband. And then when he realized the wife was still alive, he slit her throat and stabbed her twice with a hunting knife. And in the second case, he wrote an opinion reversing the death penalty that had been imposed on a defendant that had raped and strangled a 13-year-old girl. Should Scalia not be on that court?

That was a publicized case; I raised it on the floor of the Senate. I happen to think he probably made the right decision under our Constitution.

But, you know, what people are looking for is balance. So, I'd have less trouble with Ronnie White if you had gone to the floor when this decision was made and say, "You know I'm really disappointed in Scalia. He was one of my heroes. He was one of the people I most respected, and look what he just did."

BIDEN: But nobody says that. Nobody says that. But Ronnie White comes along — I just want you to understand why people are suspect, John.

People are suspect not because they believe — at least to the best of my knowledge — because they believe you are a racist. They don't believe — I don't believe that. I don't believe that. But they're suspect because they believe that your ideology blinds you to an equal application of, not just the law, but the facts. And that's the part that I've told you that troubles me.

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

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

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

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

I wish you were able to be more forthright — not forthright, more direct in your condemnation of things that you know now to be mistaken. And further, I wish you'd understand why — take away the interest groups. I'm not a big fan of interest groups, as you probably know. I don't meet with them anymore, because I don't trust them. With two exceptions, in my experience.

But I wonder why — I'll end with this and I'm sorry.

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

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

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

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

ASHCROFT: Well, thank you very much.

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

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

ASHCROFT: I probably should do more due diligence on it. I know they've been accused of being racist. I have to say this, Senator: I would rather be falsely accused of being a racist than to falsely accuse someone else of being a racist. I've told my children I'd rather have my wallet stolen then for me to be someone who steals a wallet.

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

ASHCROFT: No. No. No.

BIDEN: No?

ASHCROFT: I mean I don't want to be disrespectful, but for you to suggest that I was told that all of these things that you've alleged are true — I wasn't told that. And, frankly, I have been told that some of them aren't true. And I don't know the source of your things, but I'm not here to challenge what the senators on this panel say. I'm here to express myself.

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

ASHCROFT: Well, you know, that's not my purpose. Let me express to you that I believe that racism is wrong. I repudiate it. I repudiate racist organizations. I'm not a member of any of them. I don't subscribe to them. And I reject them.

And had I been fighting in the Civil War, I would have fought with Grant. I probably would have, at Appomattox, winced a little bit when Grant let Lee keep his sword and take his horse home with him. But I think that was the right decision. It was a signal at that time by the people on the ground that they recognized that some people who fought on both sides were people of decent will, and it is not time for us to find out who we should be able to hate now, that there's a long time gone by.

You know why we should respect Grant. You know why we should respect Lee. This Congress has acted to restore the citizenship of Robert E. Lee, and there are a series of members on this panel that voted in favor of restoring the citizenship of Robert E. Lee, and at that time they did so, they said the entire nation has long recognized the outstanding virtues of courage, patriotism and selfless devotion to the duty of General Robert E. Lee.

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

LEAHY: Gentlemen.

BIDEN: I've gone too much.

LEAHY: Did you have further?

ASHCROFT: Well, I don't mean to be — really, I don't have any purpose for arguing with my friend, and I believe he has a good heart and he has the right motive here. And his question is: Can I serve America as the attorney general of this country, and will people be able to have confidence in me? And I assure him that they will.

ASHCROFT: And for those that don't have confidence at the ab initio, if we want to go to the law school phrase, they will. Because I will serve, and I will serve well. And if the absence of unanimous confidence in any individual becomes a disqualifier, all we do is to invite groups to signal a lack of unanimous confidence and they paralyze the system.

I will enforce the law. I reject racism. I will reach out to people, all people and enforce all of the law. And I respect this panel's and this committee's dedication, and I don't have an argument with the senator.

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

BIDEN: He didn't answer all of the things — you know, when a person spend 15, 20 minutes asking a protracted question, it does place on the respondent a need to, sort of, say, "I want to respond to the nature of the questions and not to all of them," and I think I did that.

I'm not complaining, not asking. I thank the chair for its fairness in this respect, and, if I come up with something else that I think I should say, maybe I'll submit something.

LEAHY: As I said yesterday, the witness will have — should not to feel in any way that he is cut off, nor senators cut off in questions. If the nominee feels at any time there has not been adequate time to answer, as I said yesterday, we will provide the time. We'll provide the time to go back to any answer that he wants to change, clarify, or add to, and, of course, the record is always open for that.

As I stated this morning when I felt that there may have been an error in an answer yesterday, I raised that point. Again, if the nominee doesn't accept that analysis, he will also be given time.

I want to have as complete a record as possible. I do not want either the nominee to feel that he has not had a chance to answer all the questions that are asked of him as completely as he wants. By the same token, I want to make sure that all senators, both Republican and Democrat, have the opportunity to ask their questions.

With that, I'll turn to the senator from New Hampshire, Senator Smith.

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

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

SMITH: Thank you, Mr. Chairman.

Let me just say, in terms of watching and participating in the hearings yesterday with you, Senator Ashcroft, and watching how you conducted yourself in response to the questions and the comments, and then again today, my admiration for you is about tenfold beyond what it was yesterday, and it couldn't get much higher yesterday.

The way that you have risen above the attacks that have been delivered upon you is remarkable. It's a tribute to you.

The fact that a distinguished person like yourself would have to endure comments about racism and segregation and all of the other things that have been said or insinuated throughout this hearing, dredging up racist organization charges and so forth, is really, in my view, demeaning the United States Senate.

SMITH: You know, this — I thought we were going to start off in a spirit of bipartisanship this year and to try to look at things, if we could, on a more even basis.

John Ashcroft, the nominee for this position, has said that he will enforce the law, period. He raised his right hand and took an oath and said, "I will enforce the law," even though I know John Ashcroft well enough to know that if he had the choice on the enactment of some of those laws, they'd be a lot different, if he could have enacted them unilaterally. But he also said, "I will enforce the law."

That's what this hearing is about, whether or not you think John Ashcroft will enforce the law. Not enact the law; he had that opportunity for six years here as United States senator. That's not what this hearing should be about. Let's stay focused on what it really is about.

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

This is very, very troubling. You could disqualify a heck of a lot of people from being attorney general. One of them was an appointment by John F. Kennedy to the Supreme Court, Byron White, who was pro-life, one of the leading pro-life advocates on the United States Supreme Court. So I guess we would have to disqualify him as well, using that kind of a marker.

I think this is thin ice that we're on. This is not a Supreme Court nomination; this is the president's Cabinet. And I want to make just a couple of points, Mr. Chairman. I doubt that I'll use the 15 minutes.

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

And so I think we would have to disqualify every single lawyer in America who applies the ethical code of his or her state from being attorney general of the United States if we're going to use that marker.

So I would hope that we would stay focused here, and say that even to imply, let alone say that somehow a lawyer, in this case the attorney general, who is defending his state, as he's obligated to do by law and by the ethics of his profession — to somehow imply that that comes to racism is outrageous. And especially since some, even on this committee, were involved in supporting, against the opposition of the NAACP, I might add, and many other prominent people — the people on this very committee were supporting certain candidates for re-election to office in spite of that.

SMITH: So we'll let the chips fall where they may. But let me just add one more point.

I might just say, Senator Durbin, your quote on the Ronnie White matter, when you were questioning Senator Ashcroft a few moments ago, quote, "It appears that your conclusion about Justice White is a conclusion that is not shared by the law enforcement community of the state of Missouri." I don't know where that came from, but we have a letter from the National Sheriffs Association, the Missouri Association of Police Chiefs, the Missouri Sheriffs Association all stating their opposition to Judge White.

And I might — I just want — and then Senator Ashcroft, if you would like to respond or make a comment feel free to do it. I want everybody to understand — and I think Senator Ashcroft understands this. I heard all this stuff about how Senator Ashcroft led the fight to deny Ronnie White. He never spoke to me about it personally. Never asked me to do anything other than what my own conscience would dictate. So, I guess, I'm puzzled by all of this information that seems to be coming to light.

But let me just refer quickly to the letter from one of the victims, who is also a sheriff. And you know, the issue here — and I'm doing this only to get us back to focus, as to what this is about. Judge White had every right to make the decision he did as a judge, every right to do it. But there are consequences for that. The consequences are you could be perceived as being against tough law and order. And that's the way 54 United States senators saw it. That's not about race, and to imply that it is, is outrageous.

Let me tell you what it is about. This is from Kenny Jones, whose wife was murdered. "I'm writing to you about Judge White" — I'm not going to read it all, I'll enter it as part of the record — "... of the Missouri Supreme Court who's been nominated to be a federal judge. As law enforcement officers, we need judges who will back us up and not go looking for outrageous technicalities so a criminal can get off. We don't need a judge like White on the federal court bench.

"In addition to being sheriff of Moniteau County, I'm a victim of violent crime, so are my children. In December, 1991 James Johnson murdered my wife, Pam, the mother of my children. He shot Pam by ambush, firing through the window of our home during a church function that she was hosting. Johnson also killed Sheriff Charles Smith of Cooper County, Deputy Les Rourke (ph) of Moniteau County and Deputy Sandra Wilson of Miller County. He was convicted and sentenced to death.

"When the case was appealed and reached the Missouri Supreme Court, Judge White voted to overturn the death sentence of this man who murdered my wife and three good law officers. He was the only judge to vote this way.

"Please read Judge White's opinion. It is a slap in the face to the crime victims and law enforcement officers. If he cared about protecting crime victims and enforcing the law, he wouldn't have voted to let Johnson off death row.

"The Johnson case isn't the only anti-death penalty ruling by White. He has voted against capital punishment more than any other judge on the court. And I believe there is a pattern here." And he goes on to say, "Please write to our senators, Bond and Ashcroft, et cetera."

The point being there's nothing here about racism or segregation, nothing. And to imply otherwise is really, in my view, less than what this Senate should be about, to say it mildly. This is the law enforcement people of the state of Missouri, as well as a victim who was a law enforcement person.

And as I said, I respect Judge White for making that decision. He has every right to make that decision. But so do we, as people here in the Senate in confirming or not confirming a person to go on the federal bench, we have a right to use that information and to look at that information and make a decision as to whether or not that person should be on the bench.

So I think I'm going to stop here, Senator Ashcroft. You've had enough questions, I'm sure, to last you a long time. But just to say again, that it would be, in my view, one of the most egregious acts ever committed by this Senate should you be filibustered or not be confirmed.

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

I understand that Senator Hatch — is Senator Hatch here? I thought Senator Hatch wanted some of my time. I'd be happy to yield it to him or any other senator on my side who would like — Senator Specter would you like the remainder of time?

SPECTER: Mr. Chairman?

LEAHY: Yes?

SPECTER: Since the senator has mentioned my name, I would like to just briefly ask unanimous consent to enter into the record a letter dated October 21, 1999, from the 4,500 members of the Missouri State Fraternal Order of Police, in which they say, quote, "The record of Justice White is one of a jurist who's record on the death penalty has been far more supportive of the rights of victims and the rights of criminals."

SMITH: Well, I have a letter here from the Fraternal Order of Police, Grand Lodge, who support Senator Ashcroft. Letter to Senator Leahy dated 10 January, supporting Senator Ashcroft to be the attorney general of the United States.

LEAHY: Both letters will be included and part of the record.

SMITH: Mr. Chairman, I also have some other documents. The letters from the Sheriffs Association and, as well as the Supreme Court of Missouri Johnson case, that I'd like also to enter into the record.

LEAHY: It will be so included.

SMITH: Thank you, Mr. Chairman.

I yield my remaining time to Senator Specter.

LEAHY: How much time remains for Senator Smith?

SMITH: Four minutes and 30 seconds.

SPECTER: With a little extra time, Senator Ashcroft, I'd be glad to oblige.

I turn to an issue which has been a major one during the administration of the current attorney general. That is the issue of an independent counsel on a statute which has lapsed. And now the Department of Justice has a structure through regulation, a classification called special counsel.

The critical art of that law has been the difficulty — the independent counsel law — the critical part has been to have any review of the judgment of the attorney general of the United States in declining to appoint independent counsel.

It is possible to structure a legislative review for a special prosecutor. But would I would like to explore with you, at this time, would be first, what are your general views as to the desirability of having an Office of Independent Counsel?

ASHCROFT: I'm happy to respond to that, and thank you.

Since there is so much talk about race in the White case in the last minute, may I just take a few seconds, first, to say that I don't intend my actions or statements to be offensive. And to the extent they are, I'm very ready to say to people that I don't want that to be the case, and that I deplore racism and I always will.

And I say to people who want to look at the confirmation record, that I, for 26 out of 27 black judicial nominees, I voted for them.

ASHCROFT: And in the Foreign Relations Committee, where it was my responsibility to shepherd the appointment of diplomats to our posts around the world, I'm sure, given my assignment, that I saw more people confirmed as minorities to those posts than any other person in that interval during my service.

I just want it clear that I reject racism, and that I do not intend my actions or statements to offend individuals, and I sincerely will avoid that in every potential opportunity.

Let me address the special counsel item which you have raised.

SPECTER: Senator Ashcroft, with only about two minutes left, let me zero-in on a point of particular interest to me, and I will come back to the generalized question when I have another round.

The difficulty has been in having any review of the attorney general's judgment. And we have had a substantial number of hearings, as you are well aware, in the Judiciary Committee, challenging the judgment of the attorney general on declining to appoint independent counsel in a number of specific cases where there was a generalized view that there was more than enough basis to do so.

Special counsel is the category now, as I've said, for the attorney general to appoint outside counsel if a conflict arises. It is my thinking that to have an effective independent counsel statute or a category of special prosecutor, that there has to be a mechanism for reviewing the judgment of the attorney general. And what I would like to see structured, either by regulation within the department, as the department now has a regulation for special counsel, or a statute which would provide that a majority of the majority of the Judiciary Committee or a majority of the minority — and I take that standard from the old independent counsel statute — could go to the United States District Court and ask for a review on a standard of abuse of discretion, where there is precedent for the court to intervene and overturn the exercise of discretion of a prosecuting attorney. And there are some district court cases on that point.

What would your thinking be on such a procedure to review the attorney general's discretion?

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

ASHCROFT: And I'm not sure what the remedy is, but one of my ambitions and one of my aspirations, I should say, if I have the honor of being confirmed in this responsibility, is to increase our participation and our communication and our cooperation.

I would be pleased to consider with you this kind of proposal. But this is a delicate arena of the line between the executive and the judicial. And the right oversight is, obviously, a very important — pardon me, executive and legislative — and the right oversight by legislative officials is very important.

So I would be happy to confer with you and to examine these potentials with you. I know that, as a career prosecutor — but once prosecuting and organizing an office of 300, probably, prosecutors in Philadelphia, one of the most notable U.S. attorney's office in America, that you know the need for the right kind of information flow to the person and direction of the office, and, if everything were public, how chilling it could be. So that there are delicate balances here, and I would be pleased to confer with you about these.

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

LEAHY: I've tried to give the senator from Pennsylvania extra time. He has gone a couple minutes over, and the senator from Washington state has been waiting patiently. And I'd note that the senator from Washington state — for the newest members of the committee — is also in attendance, on behalf of the Senate, at the same funeral. Senator Cantwell, yesterday, did not get her formal opening statements. And if she wants to take that time in addition to her 15 minutes...

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

Senator Ashcroft, you and I have not met before this morning. I've not had the opportunity, the same as my colleagues, in working with you in the past, so I looked forward to this question and answer session to, if I can, get some specifics on some policy areas in your record as well as the process by which you intend to uphold the law in these key areas.

And I will try to be brief in my comments. If you could be brief in your answers, maybe we could get through a couple of these key issues. Otherwise, I'll come back to you.

But, first I'd like to go to the environment, because, obviously, to be sure the attorney general plays a significant role in protecting the environment. The Environment and Natural Resources Division of the Department of Justice has been called the nation's environmental lawyer. In fact, the 700 employees, you could say, is the largest environmental law firm in the country.

The division is charged with several tasks, obviously relating to protecting the environment. The division ensures environmental laws on the books — whether that's the Clean Air Act or Clean Water Act, Endangered Species Act — and vigorously enforces — on behalf of its primary client agency, the Environmental Protection Agency, it also defends the United States against suits and challenges to federal laws. And also the division criminally prosecutes the worst offenders of the environment.

So there can be no doubt that the Department of Justice, through this division, has a crucial role in maintaining a clean environment for future generations.

Unfortunately, Senator Ashcroft, I am troubled with your environmental record, particularly in attempts to weaken enforcement tools that EPA has, but as been said at this hearing numerous times, the job of attorney general is different. Now you will be charged with vigorously enforcing the very environmental laws are some of which you may have disagreed with. And obviously we've covered this, but I — it's a very important issue that I'd like to cover.

And that is, how do you proceed given that clearly the Environmental and Natural Resources Division exercises this vital role? Will we continue to see an aggressive division that enforces the current law and goes after polluters? And will we continue to see a very aggressive and vigorous enforcement of the Superfund laws that ensures that environmental clean-up is done and completed?

ASHCROFT: Well, let me thank you very much for your questions and thank you for the opportunity to meet you this morning.

ASHCROFT: I appreciate the clarity of your questions.

I have had an opportunity to enforce environmental regulations before, in prior incarnations as a state attorney and governor. Whether it was fish kills or whether it was making sure that the way in which federal projects were operated and power generation facilities that threaten the wildlife and fish in my home state, I took action. It is an important division.

I believe that we should do everything we can to fully enforce the environmental laws. That doesn't distinguish it from other divisions of the attorney general's office. It'll be my responsibility to fully enforce the laws in all of them. I have a commitment to the environment, personally, as well as a commitment to the environment that would come as a result of my oath of office.

I happen to be a private environmentalist. Janet and I own a farm of 155 acres, which we have tried to maintain in ways that enhance the environment, with cultivating the right kind of trees so it qualifies as a tree farm, and sowing the right kind of grasses and weaving the right kind of borders between the river and the rest of the farm so that we do that. I say that just to let you know that I'm a person that believes that our responsibility is one of stewardship and that certainly would reinforce my willingness to obey the law and to enforce it.

CANTWELL: I do have some concerns about your environmental record, but I'll leave that for a side and get to a specific question that I think may be very timely, and that is the Department of Agriculture's recently issued final roadless area conservation rule.

Certainly, the implementation of the roadless initiative has been long and somewhat controversial. Already the rule is being challenged in the courts. As attorney general, will you aggressively defend and uphold this rule, which was implemented in accordance with the Administrative Procedures Act? If I'm not mistaken, this is exactly the type of case that the Environmental Defense Section of the Environmental and Natural Resources Section of DOJ is charged with defending.

ASHCROFT: Very frankly, I'm not familiar with this rule. And I would have to examine it carefully and make a decision based on the outcome of my consultation with members of the department and others in the process.

CANTWELL: It is a very timely issue, and I would like further information on that, as it relates to the particulars of a rule that has now been put in place and, obviously, is being challenged in the courts.

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

CANTWELL: Thank you.

My second line of questioning is in regards to family planning. We have learned, during the time that you were in the Senate, you have advocated what some would describe as an extreme position in regards to reproductive choice and contraception. For example, you were a supporter of the human life amendment to the Constitution that would have declared life begins at conception, not fertilization. Many believe that such a binding legal precedent would outlaw common contraception, such as the pill.

And, as I've stated before, you are entitled, obviously, in your previous position as senator, to your opinions. That said, the nominee of the Office of the U.S. Attorney General, let me ask you, specifically about contraception. Are your personal views opposed to family planning?

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

CANTWELL: In the use of contraception?

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

CANTWELL: So in regards...

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

CANTWELL: So about the laws that create legal rights to contraceptive coverage, for example, the EEOC recently issued a decision stating that employers who fail to include contraceptive coverage in employee health benefit plans, engage in sexual discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

CANTWELL: Notwithstanding your personal opinion, will you defend the challenges to this law or initiate actions against employers who fail to provide such coverage?

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

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

ASHCROFT: Well, I would defend the rule. You know, it's the job of the attorney general to defend the rule, but in terms of my own comments about how I feel about it, I haven't weighed the legal — I thought you were asking me for advice on it, and maybe I misconstrued your question.

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

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

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

ASHCROFT: I'm not sure I have the enforcement authority of that rule in the Justice Department, were I to be confirmed. And so I'd be reluctant to say that I would deploy the resources of the Department of Justice to enforce the rule, if the enforcement is, by statute, focused in another agency.

CANTWELL: Thank you.

I'd like to cover one last issue, if I could, and it follows a line of thinking similar to some of the questions asked earlier today about judicial appointments. And I guess I'm trying to, if you will, understand the Ashcroft standard on your process of judicial appointments.

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

ASHCROFT: Frankly, I don't remember the case. There were 230 different votes on judges. I do know that 218 times I voted for confirmation, but I don't remember the circumstance.

CANTWELL: Well, I would ask if — this is a very important appointment as it relates to the Northwest, and I guess my concern is in a speech that you gave — and not to catch you off of comments, because we all give speeches — this was given in March of '97, in which you characterized Margaret McCuen (ph) as "taking marching orders from the ACLU" and characterized her efforts as "sinister," in, I thought, a very harsh tone against a nominee that you and 10 other senators voted against.

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

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

ASHCROFT: Thank you, Senator.

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

ASHCROFT: President-elect Bush has said he wants judges who will interpret the law, not legislate from the bench.

I'll be happy to provide you additional information about the particular inquiry you made, and thank you for it.

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

ASHCROFT: Thank you.

CANTWELL: Thank you, Mr. Chairman.

LEAHY: Thank you.

The senator from Kansas will be recognized next.

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

Senator Brownback?

SEN. SAM BROWNBACK, R-OKLA.: Thank you very much, Mr. Chairman.

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

I note some of the discussion back and forth with some, I don't know, some amusement at points. The questions on the magazine interview that you did, which I thought was interesting from the standpoint a lot of people do interviews in magazines. I noted that Al Gore gave interviews to Playboy and Rolling Stone magazine, and some of the advertisements in the back of the magazines were for drugs, certain sexual items, paraphernalia or such that I do not care really to repeat them right here. But I think it would be fair to assume that Vice President Gore did not endorse those advertisements.

ASHCROFT: Nor do I.

(LAUGHTER)

BROWNBACK: Very good.

ASHCROFT: I'll get that out as quickly as I can now.

BROWNBACK: If you could — and that's not to make light of the line of questioning, but it's to say that there are a lot of publications out there and none of us endorse these horrible lines that some were put in those, ideas of racism is just deplorable.

But there are a lot of magazines that put a lot of things out there, and just because a person grants an interview doesn't at all mean that they agree or condone it.

ASHCROFT: Well, let me see if I can clarify this. If the magazine has done the things that people on the committee have said to me that it does, I repudiate the magazine. I don't want to be a part of a magazine — I don't even want to do an interview with a magazine that in any way promotes slavery. I don't. That's not my — I had no understanding that that was the case about the magazine. I don't know if that is the case, but if it is, I repudiate it.

Slavery is abhorrent. It's a stain on the fabric of America's history and life, and it's one we've had a hard time scrubbing out. And we never will, and perhaps we shouldn't scrub out our memory of it, because it should warn us against the kinds of things that people can do to each other.

BROWNBACK: Thank you.

I want to go down the line and question on a couple things on law enforcement.

And I noted, Mr. Chairman, on the panels assembled for the hearings, nobody's been invited — not a single member of the law enforcement community on these panels, and I find that to be an unfortunate omission, since we're here to review the qualifications of the nation's chief law enforcement officer, the attorney general of the United States.

So, with the chairman's permission, I'd like to read and submit for the record a letter I received yesterday from the National Sheriffs Association, endorsing John Ashcroft.

It says: "On behalf of the National Sheriffs Association, I'm writing to offer our strong support for the nomination of Attorney General-designate John Ashcroft. As a voice of elected law enforcement, we are proud to lend our support to his nomination and look forward to his confirmation by the Senate.

"As you know, NSA is a non-profit, professional association located in Alexandria, Virginia, representing nearly 3,100 elected sheriffs across the nation, and has more than 20,000 members, including deputy sheriffs, other law enforcement professionals, students and others.

"NSA has been a long-time supporter of John Ashcroft. In 1996, he received our prestigious President's Award. After reviewing Senator Ashcroft's record of service as it relates to law enforcement, we have determined that he will make an outstanding attorney general and he is eminently qualified to lead the Department of Justice.

"NSA feels that Senator Ashcroft will be an outstanding attorney general for enforcement and the U.S. Senate should confirm him." And then signed by the president of the organization. I ask that that be submitted into the record.

BROWNBACK: Mr. Chairman, also along...

LEAHY: That, and the other letters from law enforcement agencies have been sent here, will all be — if they have not already been included in the record — of course, will be.

BROWNBACK: Thank you, Mr. Chairman.

I also note along those same lines, I'd like to point out that Senator Ashcroft has been designed by President-elect Bush to be the nation's chief law enforcement officer has also been endorsed by the Law Enforcement Alliance of America. Well, I won't read their entire endorsement letter; I'd like to submit it in its entirety for the records. And would note at the outset, that this is the largest coalition of law enforcement, crime victims and concerned citizens in the country. They state in here, quote, "They are firmly and vociferously working to ensure that former Missouri senator, John Ashcroft is confirmed as the nation's highest ranking law enforcement officer." That's a pretty good endorsement.

The LEAA has endorsed President-elect George W. Bush's choice to head up the Justice Department, quote, "because of his proven, tough- on-crime record, not only in the United States Senate, but also as Missouri's former governor and attorney general. John Ashcroft has consistently demonstrated his profound respect for the sanctity of the law. Because the law-and-order issue is fundamental to the demands of an attorney general, Senator Ashcroft exemplifies the kind of individual who can be trusted to uphold the law. There is no doubt that John Ashcroft will be guardian of liberty and equal justice." And I ask that that be submitted into the record, as well.

Then from the Kansas attorney general, Carla Stovall. Carla Stovall sent me a letter urging my support for John Ashcroft to the esteemed position of United States attorney general. While Carla Stovall and I don't agree on all the issues, we have a great deal of respect for each other and she sent this letter in support of John Ashcroft.

"I'm writing to urge you to support John Ashcroft for the esteemed position of United States attorney general. Senator Ashcroft, as you know, at one time in his career held the position of Missouri attorney general and served as the president of the National Association of Attorneys General.

"I am hopeful he will be responsive to the interest and needs of the states as we deal with the Department of Justice on many issues of mutual concerns. While I have numerous philosophical differences for the position I've read that Senator Ashcroft has taken over the years, I do believe President-elect Bush should be afforded the right to have the men and women he has selected for key posts be confirmed by the United States Senate. I hope his intentions are so honored by your colleagues." I submit that into the record, as well.

Now, on an issue that I think is a major, current one facing the country that will be in the hands of the attorney general, coming up, is an issue of drugs and particular methamphetamines. And I want to direct your attention and I have a couple of questions along that lines.

I think we have to do everything we can to combat this scourge on the nation. And at the risk of being repetitive, I've received, again, another letter yesterday. This one from the director of the Kansas Bureau of Investigation, describing what's taking place in my state in this problem with methamphetamines. And I think we, unfortunately, are typical of many other places across the country of this scourge of methamphetamines.

He states this in his annual report of what's going on in the state of Kansas regarding drugs. He said, "In a word, the bad news is methamphetamine. In law enforcement we seldom have the luxury of selecting our targets of preference, our goals and objectives. We are compelled to face what is in front of us at the time. We must confront the most serious threats challenging the safety and security of our citizens.

"In Kansas, the past several years and the present time and in the foreseeable future, what is in front of us is methamphetamines and local meth labs. Kansas law enforcement seized approximately 700 meth labs last year. The final count is not yet tabulated, but obviously another record.

"At any rate, narcotics in general and methamphetamines in particular remain our agency's top investigative and forensics priorities. We have no other choice. Such is the demand for our services and on our resources from municipal, county and state law enforcement agencies and Kansas prosecutors."

BROWNBACK: To put them in perspective — and then I would like to ask you your views on what we need to do about methamphetamines — our laboratories, in 1994, received 5,513 drug case submissions. Last year, there were just under 9,000 new drug cases. Meth lab seizures since 1994 have increased almost 15,000 percent. We continue to receive an average of 33 new drug cases in our laboratory every business day.

LEAHY: I'd just notify — the light is back on, and it is at three minutes.

BROWNBACK: Thank you.

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

ASHCROFT: Well, as you well know, Missouri has had the unfortunate distinction of being one of the two meth capitals in America. The state of California and the state of Missouri have led the nation in meth labs. And it's certainly a sad thing.

And I know that local law enforcement authorities have needed the assistance of HIDTAs — High-Intensity Drug Trafficking Area federal assistance programs — to help us, and have also needed the assistance of the DEA, a part of the Justice Department, in dealing with the contamination that's left behind when these meth labs are either abandoned or broken down by law enforcement officials. The residue of methamphetamine production, which all can be made from stuff you buy at a variety store, is toxic and it's dangerous.

And I think the role that we must take is comprehensive. And I was pleased — I've mentioned on several occasions the privilege I had of working with Senator Feinstein of California — not only to have the right penalty structure so this drug, which is characteristic of rural America in many cases, has the same seriousness attached to it that some of the urban drugs, like cocaine, do. And I think that it's not only fair but necessary for us to fight against the drug. But secondly, that we have the ability to clean up and help, especially the small — in my area, a rural area, the sherrif's department doesn't have toxic clean-up capacity. So we need cooperation there.

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

And I think this kind of problem only remediates when we have good cooperation between the local law enforcement officials and people at the national level. And it would be my ambition and my aspiration, if I have the privilege of being confirmed to this office, that we would keep those relationships, some of which you recited earlier, at the very highest level so that we can work together.

Methamphetamines are just one of a series of drug problems that could very well steal a substantial portion of the future of America from us. Our young people are only 25 percent of the population; they're 100 percent of our future.

BROWNBACK: I appreciate your work on that. And I also appreciate your common sense approach on the protection of the weakest, most vulnerable amongst us in this society no matter what their stage in life. I think that speaks volumes about a society if we're willing to protect those who are the weakest. And thank you for doing that.

LEAHY: We have gone through the first round of questions. And we will now take a break for 10 minutes to allow the witness and others to stretch their legs. And we'll come back at the end of that time.

(RECESS)

LEAHY: I'll give a moment or two for everybody to get a chance to come on in.

And so that we'll understand what we're doing, we're going to go to five-minute rounds now, and I'd really urge members to try to keep it as close to that time as possible for — we'll do it the usual fashion.

I understand, Senator Hatch, everybody on your side has had their initial, is that correct?

HATCH: That's right. Everybody has here.

LEAHY: Everybody has here, and I know a number of senators have had 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.

LEAHY: 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?

ASHCROFT: 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.

LEAHY: Never?

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.

Senator Hatch?

HATCH: 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?

ASHCROFT: That's correct.

HATCH: 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.

HATCH: 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.

HATCH: 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.

KENNEDY: 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.

KENNEDY: 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, womens' 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.

ASHCROFT: 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.

ASHCROFT: 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-S.C.: 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."

THURMOND: 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.

Thank you.

ASHCROFT: Thank you, sir. I'm very pleased.

LEAHY: Senator Kohl?

KOHL: Thank you very much.

Senator Ashcroft, the recent revelations about Firestone tires and tread separation have generated tremendous concern throughout the country about tire safety. I'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.

ASHCROFT: 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...

ASHCROFT: Yes.

KOHL: ... just consider the impact on public health and safety before they agree to a gag order?

ASHCROFT: Yes.

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.

KOHL: 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.

SPECTER: 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.

SPECTER: 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.

FEINGOLD: Thank you, Mr. Chairman.

Senator Ashcroft, I believe Senator Leahy touched on this a few minutes ago, but I know that you have strongly held views on gays and homosexuality. You and I have had discussions about this, and in a 1998 appearance on CBS' "Face the Nation," you said, "I believe the Bible calls it a sin, and that's what defines sin for me."

Now, following on Senator Leahy's question, one of the great successes of the civil rights struggle of the 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.

FEINGOLD: 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.

KYL: 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.

KYL: 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.

KYL: 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 calls the state attorney general on policy issues, the state attorney general says, "You know, you ran for the wrong office if you want to run this office on policy."

In the federal system, the attorney general is — the structure of the system designs to make the attorney general part of the administration, not an administrative or an executive office, part of the executive. And there's a delicate balance there. And I think the responsibility to respond to the executive is one that is important and it relates to policy not to law enforcement in the same way.

LEAHY: The senior senator from New York.

SCHUMER: Thank you, Mr. Chairman.

And thank you for your cooperation, Senator Ashcroft; it's been a long day.

First, I'd ask you two quick questions and please try to answer these yes or no. They are not complicated or intended as traps in any way. As you know, there is an ongoing Civil Rights Department investigation of Voting Rights Act 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.

SCHUMER: 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?

DEWINE: 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.

DURBIN: 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.

ASHCROFT: 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.

ASHCROFT: 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.

DURBIN: 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.

DURBIN: 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.

SESSIONS: 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.

(CROSSTALK)

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?

SESSIONS: Yes.

LEAHY: OK.

The distinguished senior senator from California?

FEINSTEIN: Thank you very much, Mr. Chairman.

Senator Ashcroft, let me just qualify Senator Durbin's question and ask it another way. You are now confirmed as attorney general. In 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.

FEINSTEIN: 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.

ASHCROFT: 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?

BROWNBACK: Thank you, Mr. Chairman.

BROWNBACK: 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...

(OFF-MIKE)

KENNEDY: Oh, I'm sorry. Excuse me. Apologize.

LEAHY: Why don't we have the senator from Washington state?

KENNEDY: Apologize.

LEAHY: And the senator from Massachusetts.

LEAHY: 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.

Senator Cantwell?

CANTWELL: Thank you, Mr. Chairman. Senator Ashcroft, thank you for your patience and fortitude.

HATCH: 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.

FEINSTEIN: Yes.

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.

Thank you.

LEAHY: Thank you.

Senator Kennedy, who has reserved the time of Senator Biden?

KENNEDY: Tell my good friend, Senator Sessions, that if Jay Nixon was nominated, I'd be asking him the same questions.

This is just on the tobacco.

KENNEDY: I'd like to ask you just two quick questions.

One, on the issue of guns, there are three cases now — and I'll ask you the questions and perhaps you can respond to them in writing, unless you want to give an answer.

There are three occasions now where the gun law — that is, the Brady bill — is under a review: Case pending on the Fifth Circuit of appeals, where the defendant is challenging the conviction of weapons under the Brady bill, there's a case pending in the D.C. Circuit on the ban of assault weapons with the high-capacity ammunitions, and there's a case pending in the Sixth Circuit of appeal, which the gun lobby is again challenging the assault weapons ban.

And if you're able to — if you can give us your reaction, those — I didn't tell you before that I was going to raise those. There's no reason that you ought to know about them, but if you could...

ASHCROFT: I believe these are all enactments of the Congress, signed by the president, laws of the United States that are under attack. I would expect to defend those vigorously.

KENNEDY: Good, thank you.

Finally, just in your May speech — this is on tobacco. In your May speech, you ridiculed the administration's effort to reduce the youth smoking, criticizing the ethic of victimology that treats tobacco as a drug and drugs as tobacco.

In that statement, you appeared to reject the overwhelming weight of scientific opinion that nicotine in tobacco is a highly addictive drug and reject the massive evidence that children have been the victims of a deliberate effort by the tobacco companies to addict them to smoking at a young age.

Now, the administration has a legal action on that particular question, moving forward. It'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.

ASHCROFT: 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.

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.

LEAHY: 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."

LEAHY: 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?

SPECTER: 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.

SPECTER: 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.

ASHCROFT: 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.

ASHCROFT: 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. Thank you.

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