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Text of Ashcroft
Confirmation Hearing, Day Two 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.
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.
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.
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?
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.
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.
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.
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.
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, 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.
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.
KENNEDY: Well, then I'll reserve time too then... LEAHY: Following our procedure, the senator from Arizona has a chance to respond.
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.
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 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.
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.
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?
FEINGOLD: So those studies will not be terminated?
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.
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.
As attorney general, what other steps would you take to eliminate racial profiling?
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.
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.
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.
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.
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: 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 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.
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?
(LAUGHTER)
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.
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: Would you please study it? And would you discuss it with me again?
(LAUGHTER)
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.
Senator Schumer, you're recognized. And then we'll break for lunch.
(LAUGHTER)
(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.
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 |