Friday, Jan. 19, 2001

SPEAKERS:

SEN. PATRICK J. LEAHY, D-VT., CHAIRMAN
SEN. EDWARD M. KENNEDY, D-MASS.
SEN. JOSEPH R. BIDEN JR., D-DEL.
SEN. HERBERT KOHL, D-WIS.
SEN. DIANNE FEINSTEIN, D-CALIF.
SEN. RUSSELL D. FEINGOLD, D-WIS.
SEN. ROBERT G. TORRICELLI, D-N.J.
SEN. CHARLES E. SCHUMER, D-N.Y.
SEN. RICHARD DURBIN, D-ILL.
SEN. MARIA CANTWELL, D-WASH.
SEN. ORRIN G. HATCH, R-UTAH, RANKING MEMBER
SEN. STROM THURMOND, R-S.C.
SEN. CHARLES E. GRASSLEY, R-IOWA
SEN. ARLEN SPECTER, R-PA.
SEN. JON KYL, R-ARIZ.
SEN. MIKE DEWINE, R-OHIO
SEN. JEFF SESSIONS, R-ALA.
SEN. BOB SMITH, R-N.H.
SEN. SAM BROWNBACK, R-KAN.

WITNESSES:

REP. J.C. WATTS, R-OKLA., REPUBLICAN CONFERENCE CHAIRMAN
REP. KENNETH HULSHOF, R-MO.
REP. JAMES E. CLYBURN, D-S.C.
JUSTICE RONNIE WHITE, MISSOURI SUPREME COURT
EDWARD D. "CHIP" ROBERTSON, FORMER JUSTICE, MISSOURI SUPREME COURT
FRANK SUSMAN, GALLOP, JOHNSON AND NEUMAN, L.C.
GLORIA FELDT, PRESIDENT, PLANNED PARENTHOOD FEDERATION OF AMERICA
MARCIA GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN'S LAW CENTER
KATE MICHELMAN, PRESIDENT, NATIONAL ABORTION RIGHTS ACTION LEAGUE
HARRIET WOODS, FORMER LIEUTENANT GOVERNOR OF MISSOURI
DAVID C. MASON, CIRCUIT JUDGE
JERRY HUNTER, FORMER LABOR SECRETARY OF MISSOURI
WADE HENDERSON, EXECUTIVE DIRECTOR,
LEADERSHIP CONFERENCE ON CIVIL RIGHTS
PASTOR B.T. RICE, NEW HORIZONS SEVENTH DAY CHRISTIAN CHURCH, ST. LOUIS
ROBERT WOODSON, NATIONAL CENTER FOR NEIGHBORHOOD ENTERPRISE
PROFESSOR JAMES M. DUNN, VISITING PROFESSOR OF CHRISTIANITY AND PUBLIC POLICY, WAKE FOREST UNIVERSITY
KAY JAMES, HERITAGE FOUNDATION
MICHAEL BARNES, PRESIDENT, HANDGUN CONTROL INC.

LEAHY: I would urge those who are attending to please take your seats.

Judge White, I want to thank you for responding to the committee's request and being here today.

As you know, there has been a great deal of discussion about Senator Ashcroft's efforts to defeat your nomination to the United States District Court. Many have said that it was a defining moment of his Senate career. His supporters say, define him in a way they wanted. Those who — they define him yet a different way.

Most importantly, your testimony may help us understand what happened, even why it did happen. And so I thank you for being here. We'll hear your testimony. but first, did you have anything you wanted to add?

And, you know, we have these lights; I think I explained the way that worked. We will have your statement, Judge, and then we'll do the usual bit, as I explained, by back and forth. You've been in legislative bodies, you're well-aware of this. But thank you for being here, sir.

WHITE: Thank you, Mr. Chairman, Senator Hatch and all members of the Judiciary Committee for inviting me here to testify today. Thank you, twice, for voting in favor of my nomination to the federal District Court in 1999 and 1998. I appreciate this opportunity to tell my story to the United States Senate, and to reclaim my reputation as a judge and a lawyer.

It will be up to you, members of the committee, to determine what light this narrative cast on a decision you will make in voting to affirm the next attorney general of the United States.

I am the oldest son born to teenage parents. When I was born, my mother was 16-years-old and my father was 19-years-old. My mother dropped out of high school in the ninth grade to take care of me. My father worked in the post office, first as a mail sorter and then as station manager.

As I grew up, I watched my mother and father work hard, play by the rules and never quite make ends meet. We lived in a unfinished basement home with jagged concrete walls and without a kitchen or bathroom.

I grew up in a segregated neighborhood in St. Louis. When I was 10-years-old, I was bused to a grade school in south St. Louis, where kids would throw milk and food at us, and tell us to go back to where we came from.

This racism only strengthened my determination. I was not going to let my color, the color of my skin or the ignorance or the hatefulness of others hold me back. I would get the best education I could and I would use that education to make a better life for myself and for my family and for my community.

My parents could not afford to pay for my education. Since age 11, I have always worked to earn money. I sold newspapers for half- cents each and I worked as a janitor at a fast-food restaurant. I worked my way through high school, college and law school. Although balancing work and school was not always easy, I struggled through it and made it.

I have earned my good reputation as a lawyer and a judge by earning the respect of my neighbors. I was elected to the Missouri legislature in 1989. And when I was in the legislature, I was twice selected to be chairman of the judiciary committee. As chair of this committee, I worked with my legislative colleagues, members of the executive branch and citizens and law enforcement officials to strengthen the laws and the application of those laws on behalf of the people of my state.

In 1994, I was appointed to the Missouri Court of Appeals by the late governor, Mel Carnahan. One year later, Governor Carnahan appointed me to the Missouri Supreme Court. It is the law in Missouri that state Supreme Court judges are voted on by the people after they have been appointed.

I came up for a retention vote in 1996 and received more than 1 million votes. I was the first African-American to serve on the Missouri Supreme Court, the first in the 175 year history of the court.

Born into segregation, I broke this color barrier.

The high point of my professional life came in 1998, when President Bill Clinton nominated me to the federal District Court at the suggestion of then Congressman William Clay.

WHITE: What an amazing feeling for a young man from the inner city of St. Louis. At that moment, I felt that I was living the American dream. If you work hard, no matter your race, class or creed, you can succeed. This is what my parents and million of hard working families throughout this great country dream of for their kids.

However, even though the American Bar Association gave me a unanimous qualified rating, my nomination was not confirmed. I was approved twice by this committee, by votes of 15-3 and 12-6. But I was voted down by the United States Senate at the urging of Senator John Ashcroft.

What happened? When I came before this committee, I was introduced by Senator Kit Bond, who urged my confirmation. Congressman Clay also introduced me and reported to this committee that Senator Ashcroft had polled my colleagues on the Supreme Court — all of whom he had appointed when he was governor — and that they spoke highly of me and said I would make an outstanding federal judge.

After the hearing, we received additional follow-up questions from Senator Ashcroft. The other nominees were asked six questions. I was asked those questions and an additional 15. I answered all of those questions in a full and timely manner. And then, I learned that Senator Ashcroft was opposing me. I was surprised to hear that he had gone to the Senate floor and called me pro-criminal with a tremendous bent towards criminal activity. That he told his colleagues that I was against prosecutors and the culture in terms of maintaining order.

LEAHY: Inflammatory charges — and they are charges that have always troubled me. And I was concerned in the two days and hours and hours of hearings that Senator Ashcroft never disavowed that language. He had a lot of opportunities to do so in answers to questions by Senator Durbin and a number of others here.

In fact, I went back and re-read the three cases in which he convinced his colleagues, his Republican colleagues, to vote against you on October 5. That was the time when they all came out of the Republican caucus in a party line vote that I had never seen before, in a case like this voted to not allow you to go on the federal bench.

And I hope senators will read those cases themselves or consider the two columns written by the noted conservative columnist, Stuart Taylor, in National Journal over the last two years on these decisions. And I will be inserting those and some other items in the record.

So I've thought about this. It has troubled me for really more than a year. I still don't understand what motivated Senator Ashcroft to fight so hard to have your nomination defeated. I've gone over and over the record. I've talked to him about it.

I have found something interesting: Senator Ashcroft inserted a short statement in our committee records in May 1998, in which he noted a different reason to oppose your confirmation. He wrote, quote: "I have been contacted by constituents who are injured by the nominees' manipulation of legislative procedures while a member of the Missouri General Assembly. This contributes to my decision to vote against the nomination."

I wasn't sure what he was talking about so I went back to some of the questions that he had submitted to you — written questions. He asked about a vote you had questioned. So I'd ask you about that.

That vote that he asked you about was a vote on restrictive anti- abortion legislation that then Governor Ashcroft was supporting. Is that correct?

WHITE: That's correct.

LEAHY: And do you recall what happened in that incident?

WHITE: Yes, Mr. Chairman. I was asked this question by Senator Ashcroft regarding that. And here was the answer I gave. The question was: "I understand that while you served in the state legislature, you called an unscheduled vote that resulted in the defeat of a measure designed to limit abortions. Could you please provide the details of this incident?"

Here was my answer: As chairman of the House Judiciary Committee, I promise to sponsor the legislation, that I would give him a hearing date that was convenient for a majority of the committee members. On the evening in question, the bill sponsor repeatedly demanded that we take up his bill. I objected and stated that we would hear the bill at a later time, after I had had an opportunity to notify all the committee members. The bill sponsor continued to disrupt the committee by speaking loudly without being recognized by the chair. This conduct persisted for at least 15 minutes. Finally, I recognized a committee member who made a motion to bring up the bill. This motion was seconded. And a vote was taken which defeated the measure by a tie vote.

This drastic action only occurred as a result of the unruly behavior of the bill sponsor. There was no attempt to deceive the committee members not present by taking a vote behind their backs.

LEAHY: This was — so the sponsor of the bill, which then Governor Ashcroft supported, as I understand.

WHITE: I believe that's correct.

LEAHY: He insisted you bring it up. When you brought it up, he lost in a tie vote. Do you think this is something that happened years and years ago in a legislative body where people for and against and issue voted on it — do you think this contributed to Senator Ashcroft's efforts — as it turned out successful efforts — to derail your nomination to the federal bench.

WHITE: Senator, I don't exactly what Senator Ashcroft concerns were, but it caused me a concern when I receive the additional questions, and he specifically asked about that legislation in 1992. And what I've said to you this morning are the facts surrounding that.

LEAHY: Judge White, you served on the committee — I mean on the bench — with a number of justices who were appointed by then-Governor Ashcroft.

LEAHY: Is that correct?

WHITE: That's correct.

LEAHY: You have had a number of death penalty cases that have come before the court. Do you know how often you have voted the same way, either to uphold or to remand death penalty cases — how many times you've voted in conjunction with those appointed by then- Governor Ashcroft?

WHITE: I don't have the specific numbers, Mr. Chairman, but I believe that it's about 75 percent of the time. As the numbers indicate, there are 41 of 56 or 58 cases where I have voted to affirm the death penalty.

LEAHY: Would it surprise you if I told you that a survey done independently finds that you voted with the Ashcroft appointees 95 percent of the time?

WHITE: Well, not really, because there is not that much variation on those death penalty cases.

LEAHY: So if you're so completely out of step, they've got to be a bit out of step too. I mean, that's my point.

And the fact is, on the case that we keep hearing about, this gruesome murder case, is it not a fact that you were not trying to release the person charged with murder; you were just trying to make sure he got a fair trial. Is that correct?

WHITE: That's correct. What I was trying to do was to make sure that the defendant had competent counsel before there was any talk of punishment. And in that case, I urged a new trial so that he could get competent counsel.

LEAHY: And in your experience, is there any question that in a case like that, if he was found guilty, a jury would in all likelihood recommend the death penalty and that death penalty would be upheld?

WHITE: I believe so.

LEAHY: Thank you.

Senator Hatch?

HATCH: Justice White, welcome to the committee, we're happy to have you back before the committee.

WHITE: Thank you, Senator.

HATCH: And I have a lot of respect for what you went through in your life and how you came up the hard way, how hard you worked. As a former janitor myself, I understand a little bit about that. But let me tell you, I have a lot of respect for you personally.

(CROSSTALK)

FEINSTEIN: It's hard to hear back here.

LEAHY: I know that we're having trouble with the sound system.

HATCH: I don't know how to make it work any better.

I just have two questions in a bit, but maybe I ought to clear up — to your knowledge, did Senator Ashcroft ever actually state that you were calling for Mr. Johnson's release, this fellow who had killed four people?

WHITE: TO my knowledge, he did not.

HATCH: OK.

Now I know that, you know, ten lawyers can look at a statute and have ten different opinions, and interpret the law in different ways, and that's even true with two letter words. You know, I mean, we can always get into fights among lawyers. But when you said, referring to your dissent in Johnson , that, quote, "I based my opinion on sound and settled constitutional law as handed by the Supreme Court in Strickland v. Washington," unquote, is it not true that you were the only justice on your court who came to that conclusion in that particularly heinous case? And all the other justices, whether appointed by a Republican or a Democrat, disagreed with your interpretation of the Supreme Court settled law?

WHITE: I was the only judge who came to that conclusion, but all of the judges agreed that the defendant had incompetent counsel. Yet, those judges in the majority didn't get to the prejudice part, where I did. And my separation from them was, I believed that I was following the probable result standard set out in Strickland v. Washington, versus the outcome determinative result that they were...

HATCH: I understand.

Those are the only questions I wanted to ask you. And, again, happy to have you before the committee and I want you treated fairly, as always.

LEAHY: Senator Kennedy?

KENNEDY: Justice White, welcome. And I want to thank you very much for agreeing to appear before the committee. I know it's not easy to continue to relive this long ordeal.

KENNEDY: Let me ask you, did Senator Ashcroft ever raise these issues with you prior to the vote in 1999?

WHITE: No, he did not, Senator.

KENNEDY: Did he ever give you the opportunity, which you have here today, to be able to explain these positions, or to discuss these positions prior to the time of the vote? Did he ever call you in and let you know what his problems were and ask you for an explanation, give you a reasonable opportunity to answer these kinds of charges that he made against you on the Senate floor?

WHITE: Senator Kennedy, the only question that he gave me an opportunity to respond to was the question about the pro-anti-choice bill in 1992. I never had an opportunity to discuss the Johnson case.

KENNEDY: Do you have any idea about why Senator Ashcroft would say — make these charges about your judicial record that were inaccurate? Do you believe you know the reasons why he opposed your candidacy so vociferously?

WHITE: Senator Kennedy, I don't know exactly what his reasons were, and I'm just trying to lay out the facts and circumstances surrounding the rejection of my nomination, as I believe them to be. I don't know what's in his mind or what's in his heart, so I wouldn't want to speculate on that.

KENNEDY: Could you just make a brief comment on these kinds of accusations about being pro-criminal, against prosecutors, against maintaining law and order? What's your own view? What's your own attitude? That's an open-ended question, but maybe you could do it, if you could reasonably briefly because of time.

WHITE: I believe that Senator John Ashcroft seriously distorted my record. But I believe that the question for the Senate is whether these misrepresentations are consistent with fair play and justice that you all would require of the U.S. attorney general, and that would be my position on that.

KENNEDY: Well, I'd like to make just a couple of more points. We hear a lot of talk these days about what's being called the politics of personal destruction, but what happened to you is 10 times worse than anything that's happened to Senator Ashcroft in the current controversy. In my view, what happened to you is the ugliest thing that's happened to any nominee in all my years in the United States Senate.

Your record in the Missouri Supreme Court was grossly distorted by Senator Ashcroft. He tried to use your record on death penalty cases to help win his hotly-contested Senate seat in Missouri against Governor Carnahan. And most of us have rarely witnessed so much instant genuine public outrage over what happened so unfairly to you.

So it's taken considerable courage for you to come here today, Judge White. I'm pleased that you are here because you've helped to put a very personal and very human face on a very serious injustice.

Mr. Chairman, I have no further questions.

WHITE: Thank you, Senator.

LEAHY: Thank you very much.

The senior senator from Pennsylvania?

SPECTER: Is it appropriate to call you judge or justice?

WHITE: It's judge, Senator.

SPECTER: Judge?

WHITE: But I'll answer by either one.

SPECTER: In Pennsylvania, the Supreme Court — or those are called justices, and the lower courts are called judge. But they call you judge?

WHITE: They call us judges. It sounds a lot more important when you say justice. But in Missouri, we're judges, and the chief judge is justice.

SPECTER: OK, Judge White, thank you for coming here today. And I think it is useful and appropriate that you've had a chance to state your position.

The question which we're focusing here is — and I think you put it well when you said whether it's consistent with fair play and justice in evaluating Senator Ashcroft's qualifications to be attorney general of the United States.

I think at the outset it ought to be noted publicly that the Senate does not deliberate a great deal on United States District Court judges. That's an unhappy fact of life because of our work load.

And the same applies to the courts of appeals, and these are very, very important positions. When there is a nomination for Supreme Court of the United States, there is a lot of attention. You sort of sometimes judge the attention by the number of television cameras which show up.

SPECTER: As you probably noted from your own hearing, there were very few senators present. Customarily there is the presiding senator, and sometimes not even a ranking member of the other side. So that, unless there is some extraordinary incident we, the Senate, does not pay as much attention to the specifics on this confirmation process as it should.

And what happened in your case was that the matter came to a head candidly at the very last minute. And really, in sort of surprising circumstances. So I think in a sense, the Senate owes you an apology for not having more of a focus.

And perhaps, in a situation where we are to reject a nominee, there ought to be special attention. It's OK to pass a nominee without a great deal of fanfare, and there are checks. There is an FBI check and an American Bar Association check, and the staff of the Judiciary Committee makes a check.

So that, I don't want to leave the impression that it is a casual matter to be confirmed.

But I do think it ought to be stated expressly and understood that senators do not participate as much as perhaps we should because of the workload.

The question which I come to, Judge White, is whether Senator Ashcroft did anything but exercise his own judgment in the decision he made as to your nomination.

I had a very heated controversy with Senator Ashcroft on a Philadelphia state court judge. Judge Frederica Massiah-Jackson, who would have been the first African-American woman to be appointed to the United States district court for the eastern district of Pennsylvania.

And I studied her record carefully and knew her to some extent and thought she was qualified for the position. And Senator Ashcroft and others on this committee thought she was not. And we had some very heated hearings on her sentencing policies.

And I had a very sharp disagreement with Senator Hatch who presided at the hearings because she had gone through 50 cases and answered questions and then came in and was confronted with 30 more cases.

And I didn't like the process and I complained about it. It didn't do me any good, but I complained about it.

But at the end of that event, I did not question Senator Ashcroft's motives. He thought she was not qualified; I thought she was. I thought he was wrong, and she eventually withdrew. The story has a somewhat happy ending, she is now the president judge of the Common Pleas Court of Philadelphia, a very distinguished position, perhaps more distinguished than being a federal district court judge.

So the question that I have for you, Judge White, is: Do you think that Senator Ashcroft was doing anything other than expressing his own honest views?

WHITE: Senator, I think he can express his own honest views. But to call me pro-criminal and with a criminal bent, and if you look at the record, the record doesn't support those views.

SPECTER: I would be inclined to agree that characterizations are not helpful, and they are hurtful. We've had a little sparring with Senator Ashcroft on a number of the things he said. He said people in the middle of the road are either moderates or dead skunks.

OK? On time?

LEAHY: You're out of time, but go ahead and finish your thought.

SPECTER: OK. Well, I saw the red light on. But I want to pursue this a bit.

So let's move ahead that his language was intemperate. Do you think that's a disqualification from him being attorney general of the United States?

WHITE: I don't know what a disqualification would be, Senator. All I'm stating to you are the facts, and the fact is that Senator John Ashcroft seriously distorted my record. I believe the question is for the Senate to answer.

SPECTER: Well...

LEAHY: Senator, we will go back for another round.

SPECTER: Let me just ask one more question at this time.

LEAHY: I'll give extra time for that one, but then the senator from California will have, also, extra time.

SPECTER: Senator Bond concurred with Senator Ashcroft. Do you have any reason to question — in opposing your nomination or opposing it forcefully, do you have any reason to question Senator Bond's sincerity on his own judgment?

Well, what I'm looking for, Judge White, is the sincerity of John Ashcroft and Kit Bond. They may be wrong. They may be intemperate. But looking at Ashcroft's qualifications, I raise the issue as to whether you think they were less than honest or less than sincere? And I throw Senator Bond into the mix. What do you think?

WHITE: I think the facts of my situation show that Senator Bond came before this committee and spoke very highly of me. What happened between the time I was presented to the committee by Senator Bond and the vote was taken, I don't know.

SPECTER: Thank you.

LEAHY: The senator from California — I will try to make sure that the senator from Pennsylvania had extra time there, and we did. But I'm going to have to urge senators to try to keep — both Senator Hatch and I kept actually under our time.

And I say that, because I know a number of senators are on other confirmation hearings, as I am, and several others are today. And they're trying to balance their time back and forth. So in fairness to all senators, we will try to keep very close to the clock. However, the senator from California, because of the balance in here, can have a little bit of extra time. Go ahead.

FEINSTEIN: Thank you very much, Mr. Chairman.

Judge White, good morning.

WHITE: Good morning to you, Senator.

FEINSTEIN: I'd just like to extend to you my personal apology for what happened to you. I've been on this committee for eight years. I have never seen it happen before. I want you to know that many of us, particularly on our side of the aisle, were totally blind- sided by what happened. It came without warning.

The letter from the National Sheriff's Association was distributed on the floor directly with no prior notice to this committee or members of this committee. And I, for one, don't feel it's necessary for anyone to go through that kind of personal humiliation.

You have had a good, positive career. And there was no reason for this to happen to you. I just want you to have my personal apology for what did happen.

WHITE: Thank you, Senator.

FEINSTEIN: During the floor statement on your nomination, Senator Ashcroft said the following, and I quote from the record: "Judge White has been more liberal on the death penalty during his tenure than any other judge in the Missouri Supreme Court. He has dissented in death penalty cases more than any other judge during his tenure. He has written or joined in three times as many dissents in death penalty cases. And apparently it is unimportant how gruesome or egregious the facts or how clear the evidence of guilt," end quote.

Is this a fair representation of your record? For example, have you written or joined in three times as many dissents in death penalty cases as any other Missouri Supreme Court justice?

WHITE: Senator, I don't have the numbers in front of me, but I don't believe that that's correct.

FEINSTEIN: Well, I do have the numbers. Let me just find them here. I have the percentages.

I think a review of the record shows that you supported death penalty convictions slightly more than the average Missouri Supreme Court justice. You voted over 70 percent of the time to uphold death sentences. And I believe you wrote several majority opinions enforcing a death penalty verdict.

The percentage of votes for reversal of a death sentence by Missouri Supreme Court justices were: Ed Thomas — and I recognized that he's deceased — 47 percent; White , 29 percent; Holstein , 25 percent; Price, 24 percent; Benton , 24 percent; and Limbaugh , 22 percent.

Would you concur with those figures?

WHITE: Again Senator, I don't know the numbers. And some of the members of court have been there a little bit longer than me, so the numbers may be skewed a bit. But I would say this, when judging a case, I try to look at the facts of the case and the standard of law that we must apply. And try not to run around with a score card to determine how many times I'm on this side or that side.

And in every case that comes before me for determination, I give my best on that case. And if the numbers show that than that's what the numbers show.

FEINSTEIN: Let me speak about the Kinder case for a moment. In the floor statement on October the 5th, Senator Ashcroft said the following: "Ronnie White wrote a dissent saying that Missouri v. Kinder was contaminated by a racial bias of the trial judge because that trial judge had indicated that he opposed affirmative action and had switched parties based on that."

Would you describe that as a fair reading of your dissent in Kinder?

WHITE: No, it's not, Senator. But to get an understanding of my dissent, I think it's proper to read the statement that the trial judge made. And if I may?

FEINSTEIN: Please do.

WHITE: In pertinent part, the judge said: "The truth is that I have noticed in recent years that the Democratic Party places too much emphasis on representing minorities, such as homosexuals, people who don't want to work, and people with a skin that's any color other than white. While minorities needed to be represented, of course, I believe the time has come for us to place much more emphasis and concern on the hard working taxpayers in this country."

And what I said or noted in the opinion was that: "Conduct suggesting racial bias undermines the credibility of the judicial system and opens the integrity of the judicial system to question." And I stand by that opinion today.

FEINSTEIN: I believe my time is up. Thank you, Mr. Chairman.

LEAHY: The senator from Arizona, Senator Kyl.

KYL: Thank you, Mr. Chairman. I was prepared to refer to you as Justice White. That's the way it's done in my state as well. But Judge White it's a pleasure to have you here today.

First of all, I commend you for the success that you have achieved, especially given the humble background that you spoke of. You can rightly be proud of your appointment to the Missouri Supreme Court. I think it says something both about you, and would you also agree, about the man who appointed you, the late governor, Mel Carnahan.

WHITE: Thank you, Senator.

KYL: Would it not also say something about the governor who appointed the first African-American to the Missouri Court of Appeals?

WHITE: It's possible. Yes.

KYL: And of course, you know that is Governor John Ashcroft, the first governor in the history of Missouri — most of whom, by the way, were Democrats — to appoint an African-American to a higher court in Missouri.

Let me say that I can understand why you are disappointed. I think you have great reason to be disappointed, perhaps even bitterly so, about your defeat in the U.S. Senate. And I personally regret that the vote had to be taken. No one enjoys voting against someone, especially someone who I am sure is trying his or her best to do the best job they can in their office. And I am sure that is precisely what motivates you.

I did want to clear up just one thing. Senator Leahy said something about the opposition coming out of the Republican caucus. And of course, Republicans did vote against your nomination. We ordinarily don't discuss what is said within our caucuses, our policy luncheons, but let me just allude to this one occasion. We usually devote a couple of minutes to business that's going to be coming up in an afternoon or the next day or two.

And John Ashcroft rose and made very brief remarks. They were subdued. He said: "I am not asking any of you to follow my lead, but since one of the votes is going to be on a Missouri judge, I felt I should at least explain to you why I will be voting no, so as not to blind side any of you."

KYL: And he spoke very briefly, primarily focusing on the impact of many law enforcement people in the state of Missouri who based their opposition on what some of them suggested were decision that suggested that you were soft on crime. That is an appellation, by the way, that I don't think should be used.

No one ever mentioned your race; in fact, I know that many of my colleagues when they voted were not aware of your race until after the vote.

I just want to conclude by saying I think your record can be fairly debated. I am very troubled by some of the things that you have written, but I assure you that I do not believe that you ever intended to misapply the law, and I believe that that is Senator Ashcroft's belief as well.

WHITE: Thank you.

LEAHY: I understand the senator from Wisconsin does not have questions. Then we go to the senior senator from New York.

SCHUMER: Thank you, Mr. Chairman.

And thank you, Judge White.

You are obviously a soft-spoken man, a man of judicious temperament. I can see by your statement and the way you offered it, you're not trying to make points here, just telling what happened. You don't even really seem like a politician.

So I'd like to just ask you, how you felt when for the first time you heard that your nomination was being called into question because you were called "soft on crime," "pro-criminal"?

WHITE: I was obviously disappointed and upset about the labeling and the name-calling. But what troubled me the most was the lack of opportunity to come in and at least talk with the senators about my record and about the cases that were called into question, and have the kind of discussion that we're having here this morning, where I would be given the chance to speak and you would be given a chance to ask me questions. That was the most troubling aspect of that.

SCHUMER: During your career in Missouri, had that been a common charge used against you, when you ran for judge, when you ran for other offices in Missouri?

WHITE: No, Senator, that was not. I had never heard the terms "pro-criminal," "criminal bent," until I heard them on the floor of the Senate on October 4, 1999.

SCHUMER: OK.

Let me ask you to comment on something I feel very strongly about here. You know, I don't believe Senator Ashcroft is a racist and I note that he has appointed African-American judges and things like that.

But I do feel this, I feel that given America's long and tortured history in terms of race relations, that we have to be ever so careful about applying a double standard, a double standard which has been, well, it was the signature of Jim Crow and everything that has happened since the days of slavery. It's OK for whites to be treated one way, but blacks are treated a different way.

And I don't think this is a philosophical issue. I think every person at this table, from the most conservative to the most liberal, would agree that America must fight hard to avoid a double standard.

What I find so troubling about your nomination is not that someone would call you "soft on crime," whether it's true or not — that's a legitimate issue to debate when we debate judges, and my views on criminal justice are decidedly moderate — but, rather, that a different standard might be used in your nomination than for others who are not of your race.

SCHUMER: And if you look at the number of judges that Senator Ashcroft supported, who, at least, when you talk to some of the people who prepared the documentation for all those judges, were clearly more liberal on criminal justice and other issues than you, but who were white, and then were voted for without any raising of any questions, it's extremely troubling. To me, it shows real insensitivity to our long and tortured history of racial relations.

And would you care to comment on that thought? Am I off base here? Do you think it applied to you? Tell me what you think.

WHITE: Senator, first let me say, I don't think Senator Ashcroft is a racist and I wouldn't attempt to comment on what's in his mind or what's in his heart. But the answer I would give to your question is this: There was a lot of outrage about my nomination being rejected and particularly in the African-American community. And the reason for that outrage, I believe, is that when you have an African-American judge, African-Americans see that as one more step towards true equality.

So when that judge rules, whatever way it is, there shouldn't be any hint of racism or any underhanded dealing because there is a sense that that person gives it their best. So that would be my explanation for the outrage behind my rejection.

SCHUMER: Do you think there was the feeling that a double standard was used in opposing your nomination?

WHITE: Yes.

SCHUMER: One final question. Because this whole episode is terribly difficulty, I think, for so many of us on both sides of the aisle here. Over the past few days, Senator Ashcroft has spoken at length about his concern for civil rights and his sensitivity to issues of race. Does anything he has said in the last few days here at this hearing give you reassurance?

WHITE: Senator, I have not really watched his testimony, but I would just say to you again, I do believe he seriously distorted my record and I'm here this morning to attempt to try to set that record straight.

SCHUMER: Thank you, Mr. Chairman.

LEAHY: Thank you.

The senior senator from Ohio, Senator DeWine?

DEWINE: Mr. Chairman, thank you very much.

Judge White, thank you very much for coming in. We very much appreciate your testimony.

And Mr. Chairman, I do not have any questions.

LEAHY: Thank you, Senator.

The senator from Wisconsin, Senator Feingold, was at another hearing, I believe, and he's now here. Then we'll turn to the senator from Wisconsin.

FEINGOLD: Mr. Chairman, let me just say — I apologize to the witness. I had to introduce the governor of the state of Wisconsin to the Finance Committee, as did Senator Kohl, and I recognize the tremendous importance of your testimony, which I will read and then perhaps ask questions later.

LEAHY: Thank you. I have noted for the record that a number of senators, both Republicans and Democrats, are at a series of confirmation hearings, that's why they are not here.

Then we would go to the senior senator from Illinois, Senator Durbin.

DURBIN: Thank you very much, Mr. Chairman, and Judge White, thank you for joining us.

I only wish that every member of the Senate could hear your testimony. I only wish that they could hear your life story, even those who voted against you, and reflect on the decision that they made. I hope that they would ask themselves whether the person that they would be listening to is the same person that was described by John Ashcroft on the floor of the United States Senate.

DURBIN: We have been asked by President-elect Bush to look into the hearts of his nominees. And during the last two days, we have entertained the testimony of Senator John Ashcroft about what is really in his heart. Over and over again, Senator Ashcroft told us that as attorney general, he would not be results orientated, he would be law orientated.

In your case, he was clearly results orientated and not law orientated. Because had he looked at the law and how you applied it, he never would have said the words he did about you on the floor of the United States Senate. Those of us — and I live in Illinois, a neighbor of Illinois — and those of us who followed the senatorial race know what was going on there in this situation. There was a result that Senator Ashcroft was seeking. He was trying to create a death penalty issue in the Missouri senatorial campaign. Why? Because the late-governor Mel Carnahan had spared a man in death row after a personal appeal by the pope when he visited St. Louis.

And you, Judge White, were the victim of this political calculation. Your hard work through a lifetime, your good name, and your reputation were cast aside after the political calculation was made. That to me is a reflection on the heart of the man who wants to be our attorney general.

This position in The Cabinet more than any other is entrusted with the responsibility of protecting the civil rights of Americans. We count on the law not only being there but people who will implement and enforce the law with a good heart.

We have a president who will be sworn in in a few hours who has pledged to unite us and not divide us. And as we listen to your testimony and as senator after senator apologizes for what happened to you and your good name, is there any doubt that what happened was divisive, divisive for you and your family, and for America.

Yesterday, when I asked Senator Ashcroft about this he said well the law enforcement organizations were against Ronnie White — soft on crime, not strong on the death penalty.

Judge White, when it came to the support of law enforcement organizations for your appointment to the federal district court, what is the record?

WHITE: That's not true that I was opposed to law enforcement. Senator Durbin, I have a brother-in-law who is a police officer in St. Louis. I have a cousin who is a police officer in St. Louis. I've served on boards and commissions with police officers in the St. Louis community. And I also — when I was sitting counselor for the city of St. Louis, I was the lawyer for the St. Louis city police department. And we defended police officers.

As a judge, all I've tried to do is to apply the law as best I could and the way I saw it.

DURBIN: Judge White, I noted with interest during the course of this hearing that even though the grizzly details of the Johnson case and the Kinder case were brought out yesterday, nobody has mentioned them while you're sitting here. No one from the other side has brought them up. Those are grizzly details in the Johnson case. And I want you to explain why you dissented in that case. This man apparently brutally murdered four or five people including a sheriff in execution style. And you dissented in the question of whether or not the death penalty should have been imposed. Please explain.

WHITE: The details in any murder case are grizzly. Death in a normal consequence is really bad. But the cornerstone of our criminal justice system is a right to a fair trial. And all I was trying to get to in the Johnson case was the lawyers ineffective assistance to the defendant possibly affected the jury's determination in guilt and sentencing. I did not say that these facts were not awful.

WHITE: I did not say that that family didn't suffer. All I was trying to do was to ensure that Johnson had a fair trial. And in my mind, the only way you can have that is to have competent — and then I think the consequences will flow from there.

DURBIN: Did you call for his release in your dissent?

WHITE: No, I did not. I just urged a retrial. But I think the impression was created that since I voted to reverse in the case, that Johnson would be released.

And if I might say further, when we rule on a death case in Missouri that case goes to the federal court system for review. And in writing my dissenting opinion, I was writing to the next level of review to say, "Look, there's a difference of opinion on my court about how to apply the standard in Strickland v. Washington. Help us. Tell us who's right. Am I right or are they right." And that was all I was I trying to get to.

DURBIN: Let me close by saying this: I am very sorry for what Senator Ashcroft did to you and your reputation. And I join with my colleagues in apologizing for what happened to you before the United States Senate.

WHITE: Thank you, Senator.

DURBIN: Thank you.

LEAHY: The senator from Alabama, Senator Sessions.

SESSIONS: Thank you, Mr. Chairman.

And, Judge White, we're glad to have you here. I think it's good for this committee to allow you to share your thoughts and concerns about the way the process was for you.

I agree with you that this gaggle of blow-hards sitting in this Senate are not particularly good at making these decisions. I've seen a lot of decisions come out of this committee that I haven't been happy with, but it is a system. And they do vote and that's it. And we have to live with it.

And you're blessed, I think, with the ability to remain as justice of the Supreme Court of Missouri; a great and august position. I hope that you will enjoy it. And I hope that you would not succumb to, as some suggested, bitterness or ill feeling. You...

WHITE: No, Senator Sessions...

SESSIONS: ... look like you're not.

WHITE: I'm not bitter at all.

SESSIONS: You've got a great career. You've had a good career. And we validate that.

I've been a prosecutor for 15-plus years. I feel strongly about those issues. John Ashcroft was attorney general for quite a number of years. John was attorney general and I was a prosecutor during the time this country begin to refigure what we were doing about criminal justice. It seemed more and more that the law schools were teaching that this was almost like a game. A judge was sort of like a umpire or referee. And he threw the flag for minor or insignificant offenses by the police, calling for retrial for defendants to be released. There's some intellectual support still alive today for that.

People still believe in that, that we are insufficiently protective today since we've changed. I don't. I believe firmly that we need to focus on guilt and innocence and we ought not to be so focused on errors that had little or no impact on the outcome of the trial.

And I've looked at a number of your opinions. And I think your views may be consistent with quite a body of intellectual and liberal thought on crime in America. It's not what I would want.

And John Ashcroft voted for 26 of 27 judges that were African- American that President Clinton put up. His problem was you were his judge. And his sheriffs, 77 of them, had opposed you; chiefs' of police association opposed you.

I feel an obligation, implicit in my election, was that I would watch to make sure that the federal judges that are appointed are going to be fair to the police officers and sheriffs and prosecutors I served with, do you think you could understand John's approach, that that may have been a factor in his thinking?

WHITE: I can understand his approach, but I can't understand his distortion of my record.

SESSIONS: Well, you know, it's a difference of opinion, like in the Kinder case that was alleged here, this judge made some insensitive, maybe, at best remarks. Perhaps this judge may have even been subject to censure. Was he ever censured?

WHITE: No, he was never censured.

SESSIONS: Subject to censure. But what troubled me was, you reversed his decision, saying that actual fairness of the trial was not sufficient, that even though there was no showing that he made a single error against the defendant, you voted to reverse his case. That troubled me. Would you like to comment on that?

WHITE: Yes, Senator, because in my mind his comments created a sense of judicial bias from the outset. When he made these statements about five or six days before trial, then he goes into court and says, I can be a fair and impartial judge. And I will say to you, as you know, a judge is a judge all the time. And you don't stop being a judge in one instance and be a judge in the next.

SESSIONS: Well, I would disagree. I would believe that if the judge conducted a fair trial; there was not one hint that he did anything to bias that case, the case should not be reversed.

I was aware of some of the programs that were set up, put up a sign, "Drug dealers are going to be stopped ahead." And what they found was, drug dealers would stop and make U-turns in the street and things like that, and police would stop them and they wouldn't excessively — they wouldn't just search their car based on that, they would make inquiries and sometimes ask the occupant of the car if they could search the car.

You voted in dissent, I believe, that that procedure was unfair because the highway traveler would be tricked. That troubled me.

Well, I see my time is up. I won't get into the Johnson case except to say, those were, would you not agree, some skilled attorneys that were defending him. Those are retained attorneys with Mr. Ing , had 10 years of practice, teaches criminal law. And another lawyer, Mr. Blye , was an active litigator, having won awards and done some teaching. It was a pretty good group of retained attorneys, was it not?

WHITE: Well, one of the lawyers was basically a solo lawyer, and I think that the public defenders in Missouri have substantial experience, probably more experience than private attorneys in handling death penalty cases because they handle many more.

SESSIONS: Well, Mr. Ing teaches criminal practice skill courses for the criminal law section of the Missouri Bar Association. He received an award from the Criminal Defense Bar, the Host Award from the Missouri Association of Criminal Defense Lawyers. He was a member of the Association of Criminal Defense Lawyers for 14 years, sat on the board of directors, and currently serves as vice president of the Missouri Association of Criminal Defense Lawyers. This was a quality civil attorney. He was a good partner, I would suggest. Plus a third attorney, Christine Carpenter , who apparently has good skills. I don't think they were...

WHITE: I mean, that's why these errors don't make any sense. I mean, you had all that skill and record there, when all they had to do was pick up the phone, contact the witnesses, and try to figure it out.

SESSIONS: My view was, they just simply put on a defense that was proven unfounded, and the jury found...

LEAHY: Could we — I don't mean to interrupt, but we've gone considerably over time and I'm trying, again, at the request of senators on both sides, I've been trying to keep on time.

The senator from Wisconsin, Senator Feingold.

FEINGOLD: Thank you very much, Mr. Chairman.

Justice White, again, thanks for being here. I now have had an opportunity to read your statement. I'm told by my colleagues that hearing it is even more moving.

Certainly, simply reading it is. And I want to join Senator Durbin in the apology.

WHITE: Thank you.

FEINGOLD: The rejection of your nomination was unjustified. And I particularly regret that it was an entirely partisan vote.

FEINGOLD: I think we were all shocked and the more I, of course, read about some of the facts, it is a regrettable moment in the Senate. And, at a minimum, I'm glad that you have an opportunity here to get the record straight on some of these points.

In fact, just as a brief response to Senator Sessions' characterization of the comments of the trial judge in the Kinder case, the notion that these remarks here are insensitive at best is something I would take issue with. A direct contrasting of minorities with the hardworking taxpayers in this country, to me, isn't beyond insensitive, and I simply wish to make, on the record, the remark that I think that these are shocking remarks for a trial judge.

SESSIONS: Mr. Chairman, may I correct myself?

LEAHY: Please.

SESSIONS: I think insensitive — I meant to say insensitive at worst. They were very bad comments that...

FEINGOLD: Excuse me, Mr. Sessions...

(CROSSTALK)

SESSIONS: ... and I didn't...

FEINGOLD: ... they were insensitive at worst, I think they go...

SESSIONS: I didn't say that and I apologize for any inaccurate...

FEINGOLD: ... well beyond that.

Mr. Chairman?

LEAHY: Yes?

FEINGOLD: My apology for getting that wrong. I find it hard to imagine these words simply being called insensitive at worst. The hardworking people of Wisconsin would consider them to be far beyond insensitive.

Mr. Chairman, one item that I assume you'd like to set the record straight on is that, in opposing your nomination to the federal bench, Senator Ashcroft was highly critical of your dissent in a case called State v. DeMask . This was a Fourth Amendment case that the Missouri Supreme Court decided in 1996 and you offered the dissenting opinion.

The case addressed the constitutionality of drug interdiction check points in two Missouri counties. Police officers dressed in camouflage were stopping motorists in the dark of the night at the end of a lonely exit ramp and looking for evidence to allow them to search the vehicles for drugs.

The majority of the Missouri Supreme Court decided that these stops were constitutional but you dissented. You agreed with you and your colleagues that trafficking in illegal drugs is a national problem of the most-severe kind and you agreed that traffic stops such as these could be conducted in a reasonable way. But you found that these particular checkpoint operations were not conducted in a reasonable way and were, therefore, unconstitutional.

And then just a few months ago, a case with facts very similar to the Missouri case made its way to the United States Supreme Court. In the City of Indianapolis v. Edmund , the U.S. Supreme Court found that drug interdiction checkpoints like the ones that were upheld by the Missouri Supreme Court are unconstitutional. The Edmund case makes clear that the police may not set up roadblocks in the hope of interdicting drugs or detecting some other criminal wrongdoing. In fact, the United States went in even farther in protecting the rights of motorists than you were prepared to go in your dissent. But I don't think anybody really considers the Rehnquist court to be pro- criminal.

In light of the recent U.S. Supreme Court decision, would you agree that the majority decision in DeMask would now be considered bad law?

WHITE: That's correct, Senator. In fact, I was vindicated by the United States Supreme Court by their decision when they said those kind of checkpoints were unconstitutional.

FEINGOLD: Thank you again, and thank you, Mr. Chairman.

LEAHY: Thank you, Senator Feingold.

The senator from Kansas, Senator Brownback.

BROWNBACK: Thank you, Mr. Chairman, and welcome, Justice White. Delighted to have you here at the committee.

I heard your opening statement. I was watching it and it was very powerful. A real success story of pulling yourself up by the boot straps in very difficult circumstances and conditions, and I applaud that. I applaud what you've attained and what you're doing and what you continue to do.

I appreciate as well your willingness to come here and testify in a difficult circumstance and condition that we've got as we're trying to review and to look at one of the former members of our body making the move from a legislative branch to an executive branch position, from one that makes decisions voting on judges to one on enforcing the law. And there are different qualifications and criteria that people look at in those sorts of shifts.

BROWNBACK: Where John Ashcroft was in your state, was attorney general for two terms in your state, there are no allegations that he didn't enforce the law and bring it forth with equal justice, the head of the attorney general's association, National Attorney General's Association, in enforcing law.

So while they are points, I think, that have been validly made. I think we're looking at now, what would a person do in enforcing the law and would they do that equally and fairly.

And while I think you raise legitimate points about your confirmation, there is also concerns that were being raised at that time about support for you from the law enforcement community or lack of support, really, thereof.

And here was, you know, a key area where the law enforcement community need to have comfort as well in your abilities as a judge in that particular condition.

So I appreciate very much your background, the words and the information you bring in front of us. There were challenges — legitimate ones, I think, at that time — ones that can be questioned. But when you look at a lifetime appointment to the bench, you really weigh those carefully and look at them cautiously when considering that lifetime appointment.

And I have no doubt that you're going to continue in a great role in public service. And after the difficult circumstances, after today, we will all move on forward, and you will serve well and serve with distinction.

But those questions being raised at that time on a lifetime appointment I think caused a number of people pause.

Thank you for being here today.

Mr. Chairman, I have no questions.

WHITE: Thank you, Senator.

LEAHY: I will put into the record an editorial from the St. Louis Post Dispatch in which they quote Charles Blackbar , retired Supreme Court judge, who called Senator Ashcroft's attack on Judge White as quote, "tampering with the judiciary." I'll put that in the record. I'll put in the record from the National Journal an article by Stuart Taylor in which he says that Senator Ashcroft smeared Judge Ronnie White for his own partisan political purposes. I will also put into the record a strong letter of support and endorsement from the chief of police of the St. Louis Metropolitan Police Department for Judge White during his confirmation time, and also from the Missouri State Lodge of the Fraternal Order of the Police, which indicated on behalf of 4,500 law enforcement officers in Missouri that they view Justice White's record as quote, "one of the jurors whose record on the death penalty has been far more supportive of the rights of victims than the rights of criminals," close quote. I'll put that in the record.

And, Judge White, listening to the senators here, I feel that, as Senator Durbin and Senator Kennedy and so many others have said, that this was not a question of your rulings on cases, rulings which appear to be well in the mainstream — in fact, one case presupposed or predated a similar ruling made by conservative U.S. Supreme Court, the Rehnquist court — but rather that you became a political pawn.

Now, I disagreed with Senator Ashcroft on the floor of the Senate when this happened. I disagreed with him in our personal meetings, and I disagreed with him in these hearings. I won't go more with that, but I still disagree with him, even more so, having heard you.

You have sterling credentials. You've had a career that is exemplary by any standards and one that so many people, white or black, would want to emulate. I think your career was besmirched. I believe your career was besmirched, not on a question of you legal abilities, because your legal abilities are golden — they've been proven. But they were besmirched to aid Senator Ashcroft's political fortunes. That, sir, is wrong. I am sorry to have seen that happen. It will be an issue in this confirmation as will others. But as a United States senator, it disturbs me greatly.

WHITE: Thank you, Senator.

HATCH: If I could just add one comment myself. Judge White, I called you Justice White — as far as I'm concerned that's good enough.

WHITE: That's fine.

HATCH: Both are good.

But let me just say that I think you've been more gracious here toward Senator Ashcroft here than some of our colleagues.

HATCH: I just want to compliment you for it...

WHITE: Thank you.

HATCH: ... and let you know that I respect you for it. And I appreciate you being here and accept your testimony. That's it.

WHITE: Thank you, Senator Hatch.

LEAHY: If there are no further questions, the committee will...

SPECTER: Mr. Chairman, are we going to have a second round?

LEAHY: I just asked if there were any more. If there are no further questions, the committee will stand in recess for a few minutes to allow the staff to set up the tables for the next one.

(RECESS)

LEAHY: I should note while we're waiting for Senator Hatch to come, I had a good discussion this morning with Congressman Hulshof and cleared up any misunderstanding I might have about his letter to me. And I appreciate the letter. I don't know if the congressman is in here right now, but I appreciated that conversation. It was very helpful.

Now that Senator Hatch is here, we will begin.

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

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

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

ROBERTSON: Thank you, Mr. Chairman.

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

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

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

ROBERTSON: OK.

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

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

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

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

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

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

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

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

LEAHY: Thank you very much.

Ms. Woods?

WOODS: Mr. Chairman, Senator Hatch, members of the committee, I am here to provide information that I hope will help you to decide whether to confirm John Ashcroft as attorney general.

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

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

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

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

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

So this is a lot more complicated.

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

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

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

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

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

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

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

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

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

LEAHY: Thank you.

Mr. Hunter?

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

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

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

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

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

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

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

When Governor Ashcroft's term ended in January of 1993, he had appointed more African-Americans to state court judgeships than any previous governor in the history of the state of Missouri. Governor Ashcroft was also bipartisan in his appointment of state court judges. He appointed Republicans, Democrats and independents. One of Governor Ashcroft's black appointees in St. Louis was appointed, notwithstanding the fact that he was not a Republican and that he was on a panel with a well-known white Republican. Of the nine panels of nominees for state court judgeships, which included at least one African-American, Governor Ashcroft appointed eight black judges from those panels.

And in appointing African-Americans to the state court bench, Governor Ashcroft did not have any litmus tests and none of his appointees to the state court bench, be they black or white, were asked his or her position on abortion or any other specific issue, and I know this because I talked to many of the black nominees prior to their interview and talked to many of the black nominees after their interview. Governor Ashcroft's appointment, in fact, of the first black to serve on the bench in St. Louis County was so well received that the Mound City Bar Association of St. Louis, one of the oldest black bar associations in this country, sent him a letter commending him.

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

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

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

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

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

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

HATCH: We're hoping by late tonight to get this hearing over, and there's no reason not to.

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

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

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

(LAUGHTER)

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

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

HATCH: This is a good show.

LEAHY: Mr. Susman...

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

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

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

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

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

Domestically, the Cabinet position of attorney general is the most powerful of any. The attorney general has the ability to shape the future of the Senate Judiciary through his or her involvement in judicial appointments, through the 641 district court positions, the 179 circuit courts of appeal positions, and the nine Supreme Court positions.

The attorney general does much more than merely enforce the laws of this land. The attorney general is able to influence legislation merely by the persuasive powers of the office. It is myopic to believe that the office possesses no discretion in interpreting the laws of the land, particularly on legal issues neither previously no clearly decided by the Supreme Court.

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

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

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

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

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

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

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

During the nominee's term as governor of Missouri, family planning funding was limited to the lowest amount necessary to achieve matching federal Medicaid funds.

SUSMAN: And during this same period of time, teenage pregnancies in Missouri increased. The nominee vigorously opposed the Snowe-Reid amendment to the Federal Health Benefits Plan seeking to extend federal health care coverage to include contraceptives. The nominee cosponsored unsuccessful congressional legislation seeking to impose upon all Americans a congressional finding that life begins at conception, which would have eliminated the availability of many common forms of contraception and legislation requiring parental consent for minors to receive contraception.

Throughout his political career and at every opportunity, the nominee has sought to limit access to and require parental consent for not only abortion, but for contraception, as well.

Although parental consent has never been suggested as prerequisite for a minor to engage in sexual intercourse or to bear children.

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

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

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

LEAHY: Ms. Michelman, we welcome you to this committee. You have been a witness here before and we appreciate having you here today.

MICHELMAN: Thank you, Mr. Chairman, Senator Hatch, and members of the committee. I appreciate the invitation to testify.

A decade ago, I spoke here of my experience as a struggling young mother of three again pregnant by the husband who had abandoned my daughters and me, as a woman forced to endure humiliating interrogation by a hospital committee, confronted with laws that made abortion a crime. Since then, I have met thousands and thousands of women who depend on this nation's right to choose and the survivors of those women who died because they did not have that right.

I have also spoken to women facing legal hurdles today. Desperate women call NARAL to ask whether the laws that restrict and stigmatize abortion forbid them from obtaining the services they need, women without the money to diaper their children, women who cannot travel for hours to get an abortion, young women who fear they will be battered if they tell their parents they are pregnant.

The right to safe, legal abortion hangs by a slender thread. That thread could be cut by just one Supreme Court justice or by an attorney general not committed to its protection. The women NARAL represents all across this country cannot afford to have that thread severed.

I will discuss our opposition to this nomination in the context of three dominant themes. First, senators must choose between John Ashcroft's unmitigated quarter century attack on a woman's right to choose and his promise to this committee to preserve Roe v. Wade, the basis of the right he has long sought to undermine.

Second, this nomination is so far outside the bounds of our national consensus regarding fundamental civil rights that it must be rejected, notwithstanding the president's prerogatives and senatorial courtesy.

And third, John Ashcroft's record speaks volumes. It shows that he would use the vast powers of the Department of Justice to bend the law and undermine the very freedoms it took American women a century to secure. His promise to enforce existing law is obvious and necessary, but is woefully insufficient.

John Ashcroft's record includes the following — and I will note some of those that have already been mentioned. He cosponsored the Human Life Act, which would have virtually outlawed all abortions and common contraceptive methods like birth control pills. In his support for banning abortion procedures, he has called preserving the woman's life rhetorical nonsense. As attorney general, he tried to stop nurses from providing contraceptive services, an effort the state supreme court unanimously rejected.

MICHELMAN: As governor, he supported a bill outlawing abortion for 18 different reasons, almost all abortions. And women would have had to have signed an affidavit revealing the most intimate details of their personal lives. As attorney general, Ashcroft testified in favor of federal legislation declaring that life begins at conception, which would have allowed states to prosecute abortion as murder. Throughout his career, Ashcroft has worked to undermine, not respect, existing law.

Senator Ashcroft's goal has been to criminalize abortion, even in the cases of incest and rape, and to limit the availability of contraceptives. He has used every single tool of public office to attack women's reproductive rights. Merely committing not to roll back our constitutional freedoms is not enough. To be confirmed, his record and his goals should be consistent with this commitment.

Senator Ashcroft's convenient conversion on the road to confirmation is simply implausible. His conversion has been timely, but it will be too late for millions of American women if he does not live up to his surprising promise to protect their right to choose.

Now, I know that when a colleague sits before you the confirmation process is particularly sensitive. And within reasonable bounds, a president indeed should be able to pick his closet advisers. But those bounds have been exceeded here. It would be unthinkable to confirm an attorney general who built a career on dismantling Brown v. Board of Education. By the same standard — by the very same standard — a person should be disqualified if he has sought over decades and by repeated official acts to annul the rights of women. A career built on attempts to repeal established constitutional rights is not only sufficient reason to vote against John Ashcroft's nomination, it should compel rejection.

John Ashcroft has told you that he will enforce the law. I did not expect him to say anything different. Remember, though, the duties of the attorney general are far greater. He will advise the president on legal initiatives, he will be charged with interpreting the law, he will be a strong voice in the appointment of every United States attorney and federal judge, the solicitor general will work under his discretion. And I believe that Senator Ashcroft will have a very keen eye for the opportunities new cases and new statutes present.

May I say that NARAL expected the president to nominate a conservative, but John Ashcroft's record is indeed uncompromising. Millions of women who stand with me cannot afford the risk of your giving John Ashcroft the awesome powers of the attorney general.

Thank you.

LEAHY: Thank you, Mr. Michelman.

And, Ms. Feldt? As one not unaccustomed to testifying before the Congress, good to have you here.

FELDT: Thank you very much, Chairman Leahy and Senator Hatch and all senators.

I am really honored to be here, particularly to follow upon the testimony of Ronnie White, I must say, very relevant to what we're talking about now.

I also have a little confession to make. Yesterday Mr. Ashcroft disclosed to you that he and I, as I was the one who had talked with him about armadillos and skunks — the real point of that exchange, however, was to say that I agree with him that it is very important to act upon your convictions. And he and I have both spent over 25 years of our lives acting upon our convictions. But can you just wash away 25 years of passionate activism? I know I certainly could not.

I want to believe Mr. Ashcroft when he says he accepts Roe v. Wade as the law of the land. But his career stands in sharp contrast to his statements this week. Since past behavior is the best predictor of future performance, I am very worried.

John Ashcroft's beliefs are his own private business, but what he does about his beliefs are everybody's business. His career in government is noteworthy for his crusade to enact into law his belief that personhood begins at fertilization. This belief defies medical science.

As a U.S. senator, you know that he sponsored the most extreme version of the anti-choice human life amendment, which would have written his belief into the Constitution.

As governor of Missouri, he signed the legislation declaring his belief to be the policy of the state.

FELDT: And he opposed contraceptive coverage for federal employees because some of the contraceptives would have acted or could have acted after fertilization. Indeed, he never voted to support family planning at all.

The fundamental right to choose declared in Roe stands on the earlier Griswald v. Connecticut decision which protected the right to contraception. Both are based on the fundamental human and civil right to privacy in making childbearing decisions.

Mr. Ashcroft's crusade would not only outlaw abortion but most common methods of contraception as well. And unless Mr. Ashcroft is prepared to walk away from the keystone of his entire political career, then as attorney general he would be in a unique position to impose his definition of personhood as fertilization. This could not only strike at the right to abortion but also contraception.

An anti-choice president, plus John Ashcroft, plus a Supreme Court they helped shape, equals a recipe for disaster.

You have asked whether Mr. Ashcroft would enforce the Freedom of Access to Clinic Entrances Act. He says that he will enforce the law, and that is necessary, but not sufficient. It takes leadership and prevention.

And here's the difference: In the late '80s, hoards of demonstrators repeatedly stepped over the lines of legal protest at our centers. I personally received a long series of telephone death threats, both at home and at work. Our doctors were stopped day and night. Our health centers received numerous bomb threats. I went to the chief of police, and he said, "Close the clinic." There was a sea change after FACE, and with an attorney general committed to vigorous enforcement.

It's not just about enforcing the law after violence has occurred, you see, because all around the country, U.S. attorneys brought together various law enforcement agencies. Collaboration and cooperation became expectations. U.S. marshals not only answered our phone calls, they started calling us to ask if they could help with preventive measures. Murders and violent acts nationwide were cut in half as a result.

Paula Geanino , CEO of our St. Louis Planned Parenthood affiliate, tells me that in John Ashcroft's tenure as the attorney general and the governor of Missouri, he did not once take a public leadership stand against clinic violence. Her staff could not find in the media nor any individual who remembers Mr. Ashcroft speaking out on clinic violence, even when Reproductive Health Services was firebombed, causing $100,000 worth of damage in 1986.

Senator Ashcroft has said that he's proud Missouri brought more anti-abortion cases to the Supreme Court than any state. He's said that outlawing abortion is more important to him than cutting taxes, and that if he could only pass one law, it would be to outlaw abortion. How can he turn that spigot off? And if he can, what does that say?

I want to close by talking to you not as senators, but as men and women — none of the women are here today, I'm sorry to say — who care deeply about the nation and its people. This nomination represents something bigger than presidential discretion, bigger than senatorial courtesy, bigger even than your personal friendships. This is about a fundamental human and civil right to determine whether you believe women have the moral authority to run their own lives, to make their own childbearing decisions.

So I ask you to listen to your inner voices and think about what you will say to your daughters and your granddaughters. How will you explain to future generations if John Ashcroft uses the power of his office to deny the women you know and love reproductive choices, the right to our own lives?

Thank you very much.

LEAHY: Thank you, Ms. Feldt.

Ms. Greenberger, good to have you here again. And please go ahead. And we're having some difficulties with some of the sound system, so bring the microphone close to you.

GREENBERGER: Thank you.

Thank you, Senator Leahy, and other members of this committee for the invitation to testify today. I'm co-president of the National Women's Law Center, which since 1972 has been in the forefront of virtually every major effort to secure women's legal rights. My testimony today is presented on behalf of the center as well as the National Partnership for Women and Families, which since its founding in 1971 as the Women's Legal Defense Fund has also been a preeminent advocate for women's legal rights in Washington and nationally.

GREENBERGER: And we're here today to oppose the nomination of John Ashcroft to serve as attorney general of the United States, and we do so because the attorney general of the United States, very simply, is responsible for protecting and enforcing the fundamental principles and laws that have advanced and safeguarded women's progress for more than three decades, and because, as has been stated here, Senator Ashcroft's record demonstrates that entrusting him with this heavy responsibility would put these precious gains for women at far too great a risk to ask them to bear.

Mr. Ashcroft has testified that he would accept responsibility to execute the laws as they are and not as he might wish them to be, but we have not been reassured by his testimony. The extreme positions that have been a driving and overriding theme of his long public career have repeatedly led him to misread what the laws are and then to zealously use his public offices to advance his mistaken views. His assurances in his testimony were too often general in nature, subject to many caveats, and must be considered within the context of the way in which he did discharge his obligations when he was also obligated to enforce and also interpret the laws.

I want to mention briefly some of the areas beyond choice and abortion and contraception, so important, and what has been discussed so far this morning, to raise some other issues as well.

We have heard about his opposition to the Equal Rights Amendment, which would have given women the highest legal protection against sex discrimination in all areas of life by the government. This stands in stark contrast to his support of other amendments to the Constitution, extraordinary support to so many other amendments.

And we know about his vigorous pursuit of the National Organization for Women. And we know of only one other attorney general who even mentions support of that kind of suit, out of the 15 states that were subject to boycott at that time.

He used his veto power not just in not supporting laws important to women, but actually vetoing laws, including a maternity leave law in 1980 that he vetoed that was far more limited in scope than the federal Family Medical and Leave Act that he would be charged with upholding, including enforcing as attorney general.

He twice vetoed bills that would have established a state minimum wage in Missouri. Women are the majority of minimum-wage earners. And at that time Missouri was only one of six states without a state minimum wage law.

He twice used his line-item veto, in 1991 and again the following year, to seek out and strike even small sums of money for domestic violence programs, prompting a local domestic violence advocate to denounce the action as reprehensible in light of the fact that the programs in question were literally struggling to stay afloat.

One of the most critical responsibilities of an AG in administering the Department of Justice program dealing with violence against women is determining the financial resources that will be committed to that very program.

As a senator, Mr. Ashcroft's record on issues important to women has been no better, and my written testimony explains why. I will mention two points briefly.

First, as senator, he repeatedly blocked the confirmation of highly qualified women to the federal bench.

Not one of us sitting here today could have failed but be moved by the extraordinary testimony of Judge Ronnie White. And I want to point out how struck I was by the important notes of criticism that were articulated by members of this committee about the process that was followed in the Judge Ronnie White case.

There have been similar problems with other women nominees.

GREENBERGER: Senator Specter, you identified those problems this morning. Senator Ashcroft would be screening and evaluating judges and major responsibility. He would be responsible for setting up and implementing the process he would use to screen and refer judges to the president. He would be doing this behind closed doors.

This Senate has seen how he has operated in the open. To give him that vast authority, as I say, behind closed doors, is unthinkable.

I want to also say that his promise to enforce the law as it is has not been borne out in practice when he has disagreed with the law as it has been. He has not been able to do so. And I am not questioning his motives or the conviction with which he made the promise to this committee and to the American public. What I am questioning is his ability to dispassionately, despite his intentions to do so otherwise, but his ability to actually read the law fairly and accurately.

We've heard about what happened with the nurse's case. I want to briefly mention one other case when he was attorney general of Missouri, where he supported, in court, trying to go all the way up to the Supreme Court, a law that would have automatically terminated parental rights to a child born after an attempted abortion, and then making automatically the child a ward of the state.

Judge William Webster, then a judge on the 8th Circuit, described the provision, and these are in his words in a concurring opinion, as offensive, totally lacking in due process and patently unconstitutional.

We cannot ask the American public to rely upon the promises of Senator Ashcroft that his view of what is constitutional will become the view that then is argued to the Supreme Court, is the subject of advice for discrimination laws across the country...

LEAHY: Thank you, Ms. Greenberger.

GREENBERGER: ... and the like. Thank you.

LEAHY: Ms. Campbell, as always, it's good to have you here. Please go ahead with your testimony.

COLLEEN CAMPBELL: Thank you.

Honorable Senators, I'm going to declare this is a tough one for me, but I'm going to get through it.

My only son is dead. He's been murdered because of a flawed justice system; a weak system allowed the release of a lifer from prison. After the inmate was given another chance, that one more chance and that opportunity was given to kill my son.

We need an attorney general who will strongly uphold the intent of the law and our Constitution and help protect the people from crime.

My name is Colleen Thompson Campbell. Just last month, I completed my second term was mayor in the beautiful city of San Juan Capistrano in California. I'm a former chairman of POST, that's the Peace Officers Standards and Training Commission. I also serve on the California Commission on Criminal Justice. I did not buy into ever being a victim of crime.

Today I've been asked to represent and speak for many people, including my friend and great crime-fighter, John Walsh of "America's Most Wanted." He badly wanted to be here today.

I've been requested to represent and speak on behalf of 12 major California crime victims organizations and the hundreds of thousands of crime victims that those organizations represent. We strongly and unequivocally support the confirmation of John Ashcroft as the next attorney general of the United States of America. Throughout his long career, he has shown great heart and he has worked hard to lessen the devastation which victims are forced to endure.

My own journey into hell began with the murder of our son, Scott.

CAMPBELL: Because we were only the mom and dad, we had no rights. We were forced to sit outside the courtroom on a bench in the hall, like dogs with fleas. And during the seven years encompassing the three trials of our son's murderers, that's where we sat. We were excluded, while the defendants' families were allowed to be inside and follow the trial and give support to the killers.

The murder of our son was brutal, and our treatment at the hands of the justice system was inhumane, cruel and barbaric. Nothing in our life had prepared us for such injustice.

Long ago, John Ashcroft realized the need for balanced justice and has worked toward that end. He understands the victims in our country must no longer suffer the indignities that many have been forced to endure.

John Ashcroft stands for fairness, law, order and justice. He stands for balancing the rights of the accused with the rights of the victims and the law-abiding. He stands for constitutional rights for crime victims.

Throughout this great country we need unselfish courage. We need John Ashcroft's strong conviction in the right against crime. And we need him to further victims' rights.

Victims, God bless them, deserve notice, just like the criminal, the bright to be present and the right to be heard at critical stages of their case. They deserve respect and concern for their safety. They deserve a speedy trial every bit as much as the defendant. Victims deserve at the very least equal rights to the criminal.

My only sibling, my brother Mickey Thompson , and his wife were also murdered. This case is being actively pursued, and I have great faith that this case will soon be brought to trial. I only hope that our family can endure the justice system again.

John Ashcroft will fight for legal rights and true remedies for crime victims. We urge you to support John Ashcroft's confirmation.

No one knows who's going to be a victim, and if you will permit me, my words today are dedicated to the memory of Brian Campbell, my 17-year-old grandson, who died nine days ago. And it's really tough to be here, and if this wasn't so darn important I wouldn't be here. But together, Brian and I believed, as long as we have courage, today will be beautiful; as long as we have memories, yesterday will remain; as long as we have purpose, tomorrow will improve.

Thank you, Senators, for allowing me to speak. And I'm sorry I choke up.

LEAHY: Ms. Campbell, you have no need to apologize for being choked up. A former senator and mentor of mine when I came here said a person who has no tears has no heart.

CAMPBELL: Thank you.

LEAHY: And so...

CAMPBELL: They must think I have a lot of tears, they got me the whole box. Thank you for saying that.

LEAHY: Well, those of us who have been prosecutors have some sense of what victims go through, and it is a terrible thing. I don't think anybody who hasn't either been a victim or been intimately involved with the criminal justice system knows (inaudible) the victims get victimized over and over and over again.

At the request of Senator Hatch, and then following the normal courtesy, he's advised me that Congressman Watts and Congressman Hulshof — I know Congressman Hulshof is here, because I spoke to him earlier — are here.

LEAHY: This was the panel that was going to be on last night and because of some miscommunication, some members were able to be here and some weren't. And now, because of further miscommunication, the last member of that panel is not here.

But following the normal tradition in the Congress of putting members of Congress on if they're available, I'm going to ask the panel here to step down, rejoin us after lunch and we'll go back to your questions. And we'll call Congressman Watts and Congressman Hulshof now. As Congressman Clyburn gets back, we'll have him. But we will go back to questions after lunch.

Ms. Greenberger, Ms. Feldt, Ms. Michelman, Mr. Susman, Mr. Hunter, Ms. Woods and Mr. Robertson, thank you.

(RECESS)

LEAHY: If we could have order in the committee room so we make it possible for the witnesses to be heard. We have a very large room here and I know there are some people who are leaving and some people are coming in, and there are two distinguished members of the House of Representatives who deserve to be heard.

We'll hear first from Congressman Watts, who is a member of the Republican leadership, majority leadership in the House of Representatives.

As I mentioned earlier, I received a letter from Congressman Hulshof. While I did not agree to his basic request, I think I misunderstood the tone of the request. I state that not only for the congressman, but for any member of his family who may be watching, that in 26 years here, I have tried, I believe I have a reputation of always trying to extend whatever courtesy is possible to all members of both the House and the Senate of either party.

Congressman Watts, I have said we will begin with you as a member of the Republican leadership.

WATTS: Chairman Leahy, Ranking Member Hatch, senators of the Judiciary Committee, thank you for affording me the opportunity to address the nomination of Senator John Ashcroft to be the next attorney general of the United States.

Let me say here at the outset that as I have observed these hearings from time to time over the last two and a half days, that any man or woman, Republican or Democrat, liberal or conservative, who would sit through this process for three days and have bombs thrown at him should be confirmed for whatever.

And, Mr. Chairman, John Ashcroft is a man of the highest integrity. I have worked with him over the last five and a half years in the Renewal Alliance, putting together legislation targeting poor and under-served communities, for home ownership, savings, job creation and capital formation. And, by the way, President Clinton signed that legislation into law about a month and a half ago, the most comprehensive piece of poverty legislation ever to go through the House and the Senate.

I've campaigned with Senator Ashcroft in St. Louis. I've known him for the past six years. And I have never known Senator Ashcroft to be a racist nor have I ever detected anything but dignity and respect for one's skin color from John Ashcroft.

He is a man of principle. He has been scrupulously put through an inquisition of mammoth proportion, and it is safe to say that this committee has looked into everything dealing with the career and character of John Ashcroft.

We all know that no one is going to believe all of you all the time, but John Ashcroft takes defending and upholding the law seriously, and I believe that's what matters the most.

The responsibility of the attorney general is to defend and uphold the law, not to make the law. It is the responsibility of us, the Congress of the United States, to make the law.

As I said earlier, I have watched bits and pieces of these hearings during the last two and a half days. I haven't watched them all. Believe it or not, Little League soccer and junior varsity basketball games continue in spite of these very important hearings.

There's not a lot I can say today that hasn't already been said during these proceedings.

WATTS: However, I will say I am delighted that outside groups aren't making the determination on Senator Ashcroft.

I heard Senator Biden say yesterday afternoon that he did not trust many of the interest groups that have gotten involved. And if Senator Biden was here today, I would say to him, I agree with you, neither do I. I've been blind-sided by them before. And so many of these groups totally disregard the facts. Not only do they want their own opinion, they want their own facts. So again, if Senator Biden was here, I would say to him that I can relate to what he was talking about yesterday.

I'm delighted that people who know Senator Ashcroft best will make the call on his confirmation. And in your deliberations, I would ask you to consider his qualities, his qualifications, and his integrity.

Last Monday, on January 15, after observing Dr. King's birthday, my 11 year-old daughter and I were watching a Disney movie, "The Fox and the Hound." And I watched the movie for about an hour and then the movie watched me as I went to sleep on it. However, I've seen it 23 times. And it's must-see viewing for everybody.

The story is, Copper the hound puppy and Todd, the orphan fox, they became the best of friends. They did everything together. They laughed and they played together to no end. Then one day, Copper the hound and Todd the fox found themselves all grown up. Todd wanted to get together with Copper to have some more fun and relive the good old days. And Copper's heart seemed to skip a bit when he had to say to Todd, I can't play with you any more, I'm a hunting dog now. In other words, I can't be your friend anymore, forget we were the best of friends, forget we laughed together and played together, forget all those great times together, and all those other things, forget about all of that, I'm a hunting dog now.

Well, I notice that any time we have a confirmation, the hunting dogs come out. We have them on the Republican side, we have them on the Democrat side.

Members of the committee, I'm not saying that John Ashcroft has been best of friends with all of you. However, over the last six years, you've seen his heart, you know him. You've observed him up close and personal. You know he's not a racist, as some would suggest. You know he's not anti-woman, as some would suggest. Yes, you know that just like Senator Lieberman, John Ashcroft's faith is very important to him. They both never want their faith to be offensive to anyone, yet they never apologize for it.

You have observed Senator Ashcroft to be a man of compassion, strength, and integrity. He is extremely qualified. He is eminently qualified to be the next attorney general of the greatest nation in all the world.

Obviously, this decision will rest with you, the senators. But I encourage your support for Senator John Ashcroft as the next attorney general to uphold the laws and the Constitution of the United States, so help him, God.

Thank you, very much, Chairman Leahy.

LEAHY: Thank you, Mr. Watts.

I state parenthetically that I'm 60 years old, and that's quite a bit older than you are. Our children came along before we had the VCRs as youngsters. By the time we had it, they were old enough they didn't want me around to see what they were watching. So I didn't have the chance to memorize these. I now have a soon-to-be 3-year-old grandson. If you'd like me to tell you the whole script of "Thomas The Train," every song, I can do it, in my sleep, and often have.

Congressman?

HULSHOF: Mr. Chairman, thank you. I appreciate very much the invitation to be here. As you alluded to just a moment ago, I'm sure my dear mother back in Missouri appreciates your kind words today, especially in light of the little brouhaha that occurred last night. I do appreciate the chance to be with you.

LEAHY: I assure your mother that you are one of the hardest working and most valued members of the Congress.

HULSHOF: I appreciate that, Mr. Chairman. That's high praise.

Members of the committee, as pleased and honored as I am to be here today with my good friend and colleague J. C. Watts, my appearance here today is not as a sitting member of the United States House of Representatives.

Mr. Chairman, if it is permissible, I would like to have my entire written statement submitted into the record so that I could perhaps address some of the points that have come before this committee in the last two days.

LEAHY: It will be.

HULSHOF: I sat through and listened very closely to Judge White's testimony today, and I found it very compelling and very sincere — no less compelling and no less sincere than the testimony that you heard from your former colleague, I believe, John Ashcroft over the last two days.

HULSHOF: I do not know Judge White personally; I know him from the pages of the opinions that he has written. I presume that he knows me through the many thousands of pages of court transcripts that I had the occasion to participate in in criminal trials back in Missouri. And I'm not here in any respect to cast dispersions. I'm a member of good-standing in the Missouri Bar, and I'm very watchful of my comments toward a sitting member of the judiciary.

However, as the co-prosecutor in the James Johnson case, which has received such national attention — and I think it's receivnot so overtly of racial motivations have me, as John's friend and as a Missourian, deeply troubled.

And so, let me, if I can, as a fact witness, talk a little bit about this particular criminal case. I was a special prosecutor for the Missouri attorney general for a number of years and was assigned to assist the locally elected prosecuting authority, John Kay in Moniteau County, back when these crimes occurred in 1991.

Mr. Chairman, you all have talked at length about those facts. And I set them out in my written statement, but I want to just focus on some things, perhaps, to give you a sense of gravity about what this case meant to this small, rural community.

In early December of 1991, Moniteau County Deputy Leslie Roark was dispatched to a disturbance call in rural Moniteau County. And as any one in law enforcement can tell you, those are some of those difficult cases to respond to, because you never know the situation that you are being injected to.

Well, after Deputy Roark assured himself that this domestic quarrel had ended at the James Johnson residence, and as he turned to retreat to go to his waiting patrol car, James Johnson whipped out a 38-caliber pistol from the waistband of his pants and fired two shots into the back of the retreating officer.

Johnson then went back into the home, sat down, but where he could hear the moans of the officer clinging valiantly to life, laying face down on the gravel driveway outside his home. At that point, Johnson then got up from the table, walked outside, pointed his gun over the fallen officer and pulled the trigger one last time in an executive-style killing.

And the thing about this particular crime that is particularly offensive is that, as they say in the law enforcement business: The officer, though armed, never cleared leather. His gun remained strapped in his holster.

Shortly after that, James Johnson got into his vehicle and negotiated 10 or 12 miles of winding road, looking for the sheriff of the county, Kenny Jones. He knew where the sheriff lived. And as luck would have it, Sheriff Jones was not at the residence. But the sheriff's wife, Pam, was.

And again, as fate would have it on that night, Mrs. Jones was leading a group of her church friends in the Christmas program. And if I can try to, Mr. Chairman, paint a visual picture for you, imagine a normal living room, somewhere in America, with a women seated at the head and women unfolding chairs around her in the living room. With Pam Jones 8-year-old daughter, Lacy , at her knee. Christmas decorations adorned the living room and on a table next to the window, brightly wrapped Christmas packages waiting to be exchanged.

What you cannot see in that picture, however, just outside that window, James Johnson lay and wait with a 22-caliber rifle. And from his perch shot five times inside the house, killing, gunning down Pam Jones in cold blood in front of her family.

If the chairman would permit, he is not here to testify today, but if I might be permitted to single out Pam Jones' husband who made the trip here today, sheriff of Moniteau County, Kenny Jones. And may I ask him to stand, Mr. Chairman?

LEAHY: Of course.

HULSHOF: There's a statement that Sheriff Jones has submitted and, perhaps, if time permits at the conclusion, there are a couple of excerpts that I might like to emphasize, but please, I hope you would take time to examine the entirety of Sheriff Jones' written testimony, particularly as it points to the dispute about this letter from law enforcement and who was the initiating body, in that regard. And I'll move in the interests of time.

LEAHY: Direct the staff to make copies for each senator and make sure a copy is given to each member of the panel.

HULSHOF: Mr. Chairman, again, without further delving into the facts, because I think, as most of you have indicated through these days, that you have read the supreme court opinion where Judge White dissented. It was the sole dissent.

But what I do want to focus on is the record regarding assistance of counsel, because apparently, as I listened to Judge White this morning, that was his sole basis for voting to overturn and reverse these four death sentences for these four crimes. There actually were two other victims who had fallen victim to Mr. Johnson that night, and a fifth officer who was wounded seriously who miraculously survived. The jury in that county found four counts of first degree murder, with a corresponding death sentence on each of those counts of murder.

The points I'd like to raise briefly about the quality of James Johnson's representation is this: He hired counsel of his own choosing. He picked from our area in mid-Missouri what we've referred to as — as I referred to as a dream team.

And Senator Sessions, as you pointed out earlier, the resumes of these three individuals, who were experienced attorneys in litigation, as well as criminal law, attorneys who had tried a capital murder case together, there was a finding by another court that they provide highly skilled representation as they tried to deal with these very unassailable facts, this very strong case that the prosecution had. There was a detailed confession Mr. Johnson had given to local law enforcement officers. There were other incriminating statements that he had made to lay witnesses. We had circumstantial evidence, including firearms identification, a host of other factors. And against this backdrop of a very tough prosecution case, these three defense attorneys labored mightily to try to provide an insanity defense, post-traumatic stress disorder, commonly referred to as the Vietnam flashback syndrome.

And without question — and again, perhaps with just a further comment — I defended a capital murder case as a court-appointed public defender. And then after I switched sides and became, as you, Mr. Chairman, on the side of law enforcement, became a prosecuting attorney, over the course of my career I think I prosecuted some 16 capital murder cases in Missouri, and I can tell you without question that this team of defense attorneys were very able and provided very skilled, adequate representation as the law would require.

Finally, regarding the point, and I know the chairman's been gracious with my time, what I would like to do is read just a couple of the excerpts, as Sheriff Jones is here and will not be called as a witness, but particularly again on this point of the letter from law enforcement authorities.

Says Sheriff Jones : "As you know, much has been said about John Ashcroft and his fitness for this office. I, for one, support his nomination and urge this committee to support him as well.

"Last year, Senator Ashcroft was unjustly labeled for his opposition to the nomination of Judge Ronnie White to the federal district court. This one event has wrongly called into question his honor and integrity.

"Be assured that Senator Ashcroft had no other reason that I know about to oppose Judge White except that I asked him to. I opposed Judge White's nomination to the federal bench, and I asked Senator Ashcroft to join me because of Judge White's opinion on a death penalty case.

HULSHOF: Moving to page three, again, Sheriff Jones, "In his opinion, Judge White urged that Johnson be given a second chance at freedom. I cannot understand his reasoning. I know that the four people Johnson killed were not given a second chance.

"When I learned that Judge White was picked by President Clinton to sit on the federal bench, I was outraged," says Sheriff Jones. "Because of Judge White's dissenting opinion on the Johnson case, I felt he was unsuitable to be appointed for life to such an important and powerful position. During the Missouri Sheriffs' Association annual conference in 1999, I started a petition drive among the sheriffs to oppose the nomination. The petition simply requested that consideration be given to Judge White's dissenting opinion in the Johnson case as a factor in his appointment to the federal bench. Seventy-seven Missouri sheriffs, both Democrats and Republicans, signed the petition, and it was available to anyone who asked.

"Further, I asked," said Sheriff Jones, "I also asked that the National Sheriffs' Association support us in opposing Judge White's nomination. They willingly did so. And I'm grateful that they joined us and wrote a strong letter opposing Judge White's nomination."

And with that, I appreciate the deference of the chairman. I would be happy to answer questions about this case or others.

LEAHY: I thank you and thank both members. And I do appreciate Sheriff Jones being here. I repeat part of what I said on the Senate floor about Sheriff Jones on October 21, 1999. I said, "I certainly understand and appreciate Sheriff Kenny Jones deciding to write the fellow sheriffs about this nomination. Sheriff Jones' wife was killed in the brutal rampage of James Johnson. And all senators give their respect and sympathy to Sheriff Jones and his family."

The day of the debate, the one we all agreed upon, Sheriff, was how horrified we were at what happened and the sympathy we have. Like a number of others in the Senate, I have prosecuted a number of murder cases — for eight years, I tried virtually all the murder cases — tried, personally — that came within our jurisdiction.

LEAHY: Some of them are horrific, others were an example, as anyone in law enforce knows, but we call and use that terrible expression, "the friendly murder"; the family dispute that gets out of hand. All tragic. All horrible.

The description of this murder is the most horrible one I've ever heard of. That's not a question that — nobody disputes the horrible and terrible nature of this murder. Nobody disputes the right in the state of Missouri to impose whatever penalty they have on the books, whether somebody's for or against the death penalty, if it's on the books. Nobody disputes their right to do that. And everybody ascribes to the right of a fair trial.

The question, of course, comes in this — not whether Justice White was saying this person should be freed. As he stated here today, that's not what his ruling was. His ruling was to remand — he was a dissent of that to remand for a new trial.

But Congressman, you've been, as you said yourself, the prosecutor and public defender. Before I was a prosecutor, I depended only upon the assigned counsel basis. We didn't start a public defender until probably through my prosecutor's career. Frankly, I found it easier being the prosecutor. But you had to help defend a person who's accused of murder, and I would assume that as that defense attorney, you zealously worked to acquit him; would that be right? I mean, that's what you'd be required to do.

HULSHOF: Zealously defend the man accused to the best of my ability and certainly a lesser offense or to spare the death penalty and, I think, as any defense attorney is charged to do.

LEAHY: The question of penalty, and I assume with that you would argue, of course, that even though he has been convicted of murder, you would then argue that he not get the death penalty?

HULSHOF: That's correct, Mr. Chairman.

LEAHY: And actually, in the canons of ethics, once having accepted that assignment, you have to do that, do you not?

HULSHOF: That is correct.

LEAHY: Thank you.

It is also the requirements on the prosecutor, certain requirements there. In the Johnson case, the Missouri Supreme Court had raised questions about the suggestive silence at a deposition, failure to correct misstatements during a deposition. The majority decision, now this is a majority that upheld Johnson's conviction and death penalty, said quote, "This court does not condone the conduct of the state in failing to correct the erroneous implication from its own confusion about the perimeter defense," close quote.

You have both a defense attorney and a prosecutor. Both are expected to do their best to win their cases. Is that a fair statement?

HULSHOF: It is, Mr. Chairman, with some qualification, and I'll be happy to state this.

LEAHY: Go ahead.

HULSHOF: Well, clearly, the challenge for any defense attorney is to aggressively, zealously, within the bounds of law and the canons of ethics, defend the client. The prosecutor's role is even a bit greater than that. Not to be simply out to win the case, but to be, I think as the canons say, a minister of justice.

LEAHY: You presuppose my next question then. In this case, the Johnson opinion, if I am correct, was critical of the state, as they said, in failing to correct the erroneous implication from its own confusion about the perimeter evidence. Is that correct?

HULSHOF: I'm no sure of the exact — I've got the opinions, but I'd love to be able to explain since I've never had the opportunity to talk about...

LEAHY: Go ahead.

HULSHOF: And perhaps, just to set the record here, the perimeter evidence, as you might expect when the hue and cry went out to law enforcement that there had been this crime spree, this rampage over a period of time, roughly between 7:30 in the evening until 1:20 the next morning, hundreds — in fact, as we learned later, probably over 100 officers responded and participated in this manhunt. The defendant, James Johnson, actually concealed himself in the home of an 82-year-old woman.

LEAHY: The call of officer down galvanizes all law enforcement. I've been there, I know what it's like.

HULSHOF: Absolutely, absolutely.

And at some point, after Mr. Johnson had been taken into custody, and the tedious process of the collection of evidence began, it was determined there was this crude alarm system, as the court calls the perimeter evidence of a rope with some tin cans. And inside those tin cans, pieces of gravel, so that if a person were to trip it, that you would hear this noise. It was collected by the officers, but there was no report as to who had collected it, who had put it there. There was also some evidence that the vehicle that Mr. Johnson had abandoned had four flat tires and no one was quite sure — at least, there were no police reports indicating who had flattened those tires. And so really, it was not a relevant trail for the prosecution to go down.

And we did not know, Mr. Chairman, as we walked into court on the day that the trial began, who had set the perimeter evidence, who had disabled the car. And quite frankly, as our theory of the case was focusing on these nationally renowned mental experts that the defense had hired to bring in on post-traumatic stress disorder, that we were clearly focusing on other matters thinking this perimeter evidence to be curiosity.

LEAHY: OK.

The testimony here has been that, in 95 percent of the death penalty cases in which Judge White participated, he voted with at least one and usually more of the judges appointed by the then- Governor Ashcroft. Would that be fair to characterize that record as pro-criminal or bend toward criminal activity?

HULSHOF: Judge — excuse me, Mr. Chairman. I've already put you on the federal bench.

LEAHY: I only get the chairmanship for a few days, so I'll take the bench, if you want to throw that in while we're at it, go ahead.

HULSHOF: Again, I want to be very cautious, as far as my response of articulating a position on Judge Ronnie White. But what I am here to say is that, as you all have debated and as I've watched with fascination, Senator Ashcroft was here telling the Senate, as he did on the Senate floor to his colleagues, that it wasn't for any other reason — certainly not for racial reasons, as we've heard — that led to his decision to vote against the confirmation of Judge Ronnie White.

And it wasn't even this one single case, Mr. Chairman, you and I have been chatting about. It was, in John Ashcroft's mind, a pattern or series of cases.

LEAHY: Well, then maybe I should ask you — and I don't think it's fair either to you or to Senator Ashcroft for you to go in his mind — but would you characterize Judge White's record as being either pro-criminal or having a bend toward criminal activity.

HULSHOF: Again, I'm not ducking your question. As a member of good-standing in the Missouri bar, I want to be very cautious about making any statements about a judge. And, clearly, as a member of the other body who has no authority to vote to confirm or not to confirm any person that's nominated, I appreciate your question, Mr. Chairman, but I hesitate to make a personal assessment of Judge Ronnie White.

LEAHY: I understand.

Senator Hatch?

See second part of the text.

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