Thursday, Jan. 18, 2001

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ASHCROFT: I believe that's correct.

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

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

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

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

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

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

But go ahead, Senator Kohl.

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

LEAHY: Thank you.

Senator Kohl?

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

Yesterday, Senator Leahy read a 1998 quotation of yours.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LEAHY: Separated at birth.

ASHCROFT: Separated at birth? Yes, OK.

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

KOHL: OK, thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KOHL: Thank you, Mr. Chairman.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ASHCROFT: Sure.

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

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

ASHCROFT: I simply...

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

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

SPECTER: And what did you do?

ASHCROFT: Well, distribution ceased based on that.

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

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

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

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

SPECTER: Your position as well. OK.

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

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

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

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

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

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

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

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

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

(LAUGHTER)

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

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

(LAUGHTER)

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

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

Thank you, Mr. Chairman.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ASHCROFT: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FEINSTEIN: I believe my time is up.

Thank you very much, Senator, I appreciate that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ASHCROFT: Thank you, Senator.

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

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

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

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

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

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

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

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

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

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

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

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

KYL: Thank you.

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

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

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

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

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

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

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

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

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

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

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

KYL: Thank you very much.

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

LEAHY: Following the normal procedure, you can.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So, I'll conclude in that.

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

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

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

LEAHY:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ASHCROFT: Yes.

FEINGOLD: Thank you for that.

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

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

FEINGOLD: So those studies will not be terminated?

ASHCROFT: I have no intention of terminating those studies.

FEINGOLD: Thank you, Senator.

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

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

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

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

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

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

FEINGOLD: Absolutely.

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

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

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

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

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

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

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

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

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

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

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

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

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

FEINGOLD: Thank you, Mr. Chairman.

LEAHY: Thank you, Senator.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GRASSLEY: I know you can't.

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

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

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

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

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

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

ASHCROFT: Yes.

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

ASHCROFT: Yes.

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

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

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

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

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

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

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

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

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

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

GRASSLEY: Thank you.

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

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

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

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

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

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

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

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

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

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

ASHCROFT: I'd be delighted to, Senator.

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

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

(LAUGHTER)

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

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

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

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

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

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

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

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

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

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

ASHCROFT: I'd be delighted to, Senator.

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

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

(LAUGHTER)

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

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

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

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

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

(LAUGHTER)

LEAHY: Well, we wanted you to be special.

(LAUGHTER)

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

Go ahead, Senator Schumer.

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

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

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

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

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

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

SCHUMER: Can you explain the evolution in the belief?

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

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

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

SCHUMER: That's what I think, too.

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

SCHUMER: I appreciate the answer.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SCHUMER: I understand.

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

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

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

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

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

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

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

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

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

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

ASHCROFT: No.

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

ASHCROFT: No.

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

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

SCHUMER: Argue for its constitutionality?

ASHCROFT: Yes, just so.

SCHUMER: Thank you.

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

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

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

ASHCROFT: Full party...

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

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

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

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

ASHCROFT: On final passage.

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

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

May I just add this little bit?

SCHUMER: I think what may have...

(CROSSTALK)

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

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

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

ASHCROFT: I think that's correct, sir.

SCHUMER: Your staff guy is shaking his head yes.

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

SCHUMER: So I would trust him.

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

(LAUGHTER)

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

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

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

I would vigorously defend and enforce the measure.

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

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

SCHUMER: Thank you.

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

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

And — the senator from...

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

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

(CROSSTALK)

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

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

HATCH: We knew it was a waste of time.

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

HATCH: I've been pretty good about it.

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

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

(LAUGHTER)

The distinguished senior senator from Ohio.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ASHCROFT: Thank you, Senator DeWine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LEAHY: Do you have anything else?

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

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

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

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

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

Senator Collins, please, go ahead.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(LAUGHTER)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then we will stand recess until 2:09.

(RECESS)

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

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

Senator Ashcroft, welcome, again, to the committee.

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

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

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

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

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

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

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

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

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

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

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

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

Senator Ashcroft, did you treat Ronnie White fairly?

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

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

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

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

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

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

DURBIN: How many?

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

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

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

DURBIN: Your campaign did not contact these organizations?

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

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

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

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

DURBIN: In which specific cases?

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

ASHCROFT: This was during the time...

DURBIN: Senator Ashcroft...

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

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

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

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

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

DURBIN: Please do.

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

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

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

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

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

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

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

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

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

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

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

DURBIN: That was the point that Judge White made.

ASHCROFT: That is the point.

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

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

I yield to the chairman.

See the second part of the text.

Read more on this subject in related Hot Topics:

Bush Administration

Related Products:
Express your opinion about this to top leaders, Congress and the media -- send an Urgent PriorityGram -- it`s as easy and powerful --Click Here now