Friday, Jan. 19, 2001

HATCH: I want to thank both of you for coming. J.C., you're one of my heroes. And, frankly, everybody here knows what a fine man you are and what a good example you are to everybody. I appreciate your testimony here today and your support for Senator Ashcroft.

Mr. Hulshof, let me just say this: Sheriff Jones, we appreciate you being here today. We know how deeply you feel and your firsthand account of what happened and why you opposed Judge White will be made part of the record.

And I also want to thank you for reminding us of an important point that I'm afraid some of us often overlook. That is, the decisions made by judgments in this country can have a profound impact on the lives of our local citizens and law enforcement personnel. And for that reason, we should listen carefully to the views people, like yourself, express.

In particular, Congressman Hulshof, I have a lot of admiration for you and for the life that you've lived and the work you've done as a prosecutor, as an attorney. You've been in the big time, as far as death penalty cases are concerned. And I think the knowledge you bring to Congress is very important. And, I, for one, will want to get even better acquainted than we are now. And I know it's not easy for you to testify here today, but it is important that you do.

Earlier today, Congressman Hulshof, we heard testimony from Judge White. And I happen to be very impressed with Judge White; I was when I conducted the hearing. So my opinion of Judge White was a good one.

But let me just say this, there's room for two sides on this issue. I'm not going to condemn my Democratic colleagues for their very sincere vote for Judge White. Nor am I going to condemn my Republican colleagues for their very sincere vote against him. There were some pretty crass comments made at the time, but I think there's room here to go either way, as much as I like Judge White, and I do.

We heard testimony from Judge White earlier today that his dissent in the Johnson case was based on settled Supreme Court case law, as stated in the Strickland case.

HATCH: Are you familiar with that case?

HULSHOF: Yes, sir, I am.

HATCH: Now, you are an expert, experienced death penalty litigator, and an expert in case law. Would you be kind enough to explain, for the benefit of all of us here on the committee, the law and its relationship to effective assistance of counsel and how all of the other justices disagreed with Judge White's interpretation of the law in the Johnson case?

I'd like you to explain what the law is and talk about that and exactly — I'd like you to explain, if you care to — what would have been the effect on law enforcement in Missouri and victims' rights. Some of the most compelling testimony we've had, testimony on this, has been on victims' rights. I appreciated that, but what would have been the effect on law enforcement of victims' rights if the Missouri Supreme Court had held in the Johnson case — and other cases, perhaps — the way Judge White would have liked the court to have decided in that case?

I don't mean to put you on the spot, but I think that question has to be answered.

HULSHOF: Senator, I appreciate your kind words, and I will attempt to answer the questions as you put them to me and do that as expeditiously as I can.

I think it goes back to the senator from my neighboring state of Illinois, as I listened to a colloquy yesterday, about is — I think the question — forgive me for paraphrasing. I don't have your transcript, Senator Durbin, but is an error committed by a trial lawyer sufficient in and off itself — I am paraphrasing what you've said — but is an error committed by the criminal defense attorney in and off itself sufficient to overturn a sentence or a conviction.

And the United States Supreme Court case law, which our state supreme court is deemed to follow, says it's not, that simply an error committed by defense counsel is insufficient because essentially there are errors committed in — whether death penalty cases or even in a felonious stealing case...

HATCH: Was that the rule of law that should've been applied in this case?

HULSHOF: It was not the rule of law that should've been applied. And I think that the majority opinion in the Johnson case adequately and accurately described what that standard is — is that: Is it, as a result of any error by a defendant's counsel, that created a reasonable likelihood or probability that the outcome of the case would have been different but for the error.

And so I think, again, the majority opinion in the Johnson case correctly stated the law. I see the red light is on, and let me undertake...

HATCH: You can continue to answer. I'll ask my colleague to just give me a few more minutes.

LEAHY: Of course.

HULSHOF: Let me, if I could, try to answer the second part of your question as for the effective law enforcement. And I really — to this distinguished panel — the numbers that have been talked about as far as the number of affirmations or the number of dissents, I really don't know. I've not done that research, and I'm sure that those numbers are accurate.

But it's a little bit — I think, it's troubling for me, again, as going back to my former days as someone who toiled in the courtrooms around our state. It's troubling to try to negotiate or talk about these terms as far as statistics. I think the further that I, personally, get away those days when I stood this far away from a box — a jury box — where 12 ordinary citizens were asked by the prosecution to do extraordinary things.

I think the further I get away from that experience, perhaps the more I forget about how extremely difficult those cases are. They're physically demanding, emotionally draining — not just for the litigants but for the jurors that we put in those positions and for the defendant's family and certainly for the victim's family.

And the point I hope to make, Senator Hatch, is that any time that there is a reversal or any time an esteemed jurist writes a dissent, it is — in a reversal case of a reversal, it is, at least, the opportunity that that convicted killer can be free.

HULSHOF: Or in the case of a dissent, it is a message to law enforcement, it's a message to victims like Sheriff Kenny Jones, that perhaps their sacrifice has been somewhat in vain. And so, clearly, again, I see that I'm probably teetering all in the line. This is not any comment on Judge White, per se, but I answer that question in the larger context to which you gave it.

HATCH: Thank you very much.

LEAHY: The senior senator from New York.

SCHUMER: Thank you, Mr. Chairman, and I want to thank both of our witnesses for taking their time in being here, and I also want to convey my respects and sadness to Sheriff Jones for his loss, as well as to Ms. Campbell for her loss. I'm sorry, we had another hearing, and I couldn't be here for your testimony or those of the others, on energy. As somebody who has been with families who have had losses in these horrible kinds of incidents, my heart goes out to both of you.

I'd like to just focus a little bit, Representative Hulshof, in terms of this specific issue which troubles me, because the only thing, as I understand it, that Judge White did in this case was to say as a legal matter he believed that the defendant had received ineffective assistance of counsel with regard to his insanity defense, and there's a debate about that, which we have heard.

HULSHOF: Yes, sir.

SCHUMER: And that's a fair debate. But in no way did Ronnie White condone these grizzly crimes. In fact, the first sentence of his opinion reads, "I would find the result troubling." And at the end of his opinion he said, "This is a very hard case." If Mr. Johnson was in control of his faculties when he went on this murderous rampage, then he assuredly deserves the death sentence he was given. That doesn't indicate somebody to me who is pro-criminal or, even on that instance, quote, "soft on crime." I mean, I've been, in my state, one of the people who's pushed for tougher laws, whether it be capital punishment or ending parole or things like that.

But when somebody, a judge, or somebody else who's talking about a fair trial, I don't think fair trial ever enters into what side one is one. There is a balance between societal rights and individual rights, but all of us would agree both play a role.

So I would just like to ask, Representative Hulshof, would you say that any candidate to judge should be rejected because, as a legal matter, he'd written an opinion questioning the effectiveness of counsel? That's what I don't understand. I've come across people on the bench who I would characterize as soft on crime. I don't think a decision saying that there was ineffective counsel, whether it be right or wrong — that's not what we're debating here, in my judgment anyway — entitles you to say that somebody is pro-criminal or whatever the other expression that Senator Ashcroft used on the floor of the Senate. Could you comment on that?

HULSHOF: I'd be happy to, Senator Schumer. Let me say, also, I appreciated the two years that we had to serve together in the United States House.

Let me just even take a little further — Judge White's dissent went further and this is where — I can't speak for John Ashcroft, but as a prosecutor, here is the language that I find particularly troubling. It's the sentence just where you stopped.

HULSHOF: "But the question of what," and I'm quoting from State v. Johnson at page 16, "But the question of what Mr. Johnson's mental status was on the night is not susceptible of easy answers. While Mr. Johnson may not, as the jury found, have met the legal definition of insanity, whatever drove Mr. Johnson to go from being a law-abiding citizen to being a multiple killer was certainly something akin to madness."

Now it's my understanding and with all due respect to Judge White, but the role of an appellate court is not to substitute the judgment of the court for that of the jury. And, particularly as, Senator Schumer, you or I as lay persons might say that going from a law-abiding citizen to a multiple cop-killer is madness or something akin to madness, that is not the legal definition of what constitutes a mental disease in our state.

But, putting that aside, I think you asked another good — and I'll just be very candid with you — I personally do not believe that a single dissent is sufficient to disqualify any federal jurist and I know I'm going out on a limb, because I am not a member of this body.

SCHUMER: But, you know, that's a fair standard. I mean, if we were to use a single — take a single thing that Senator Ashcroft did and just saw the world through that prism, we wouldn't be being fair to him.

HULSHOF: But, if I could be permitted to follow, just as I don't believe a jurist should be disqualified over one single dissent, neither does John Ashcroft. As he described for this panel over the last couple of days, a series of cases, in fact, as he talked about on the floor of the United States Senate during this confirmation process, a number of cases.

And, Senator Schumer, just as you have said that we can have and reasonable minds can differ on whether this dissent was right or wrong, but clearly I also believe in John Ashcroft's defense that reasonable minds could have disagreed over whether or not Judge White was fit to be a jurist on the federal bench for the rest of his life. And that's the point.

Again, I am so deeply troubled and somewhat offended by some of the statements regarding John Ashcroft's vote against Ronnie White being racially motivated. The record seems to be clear. And you all have been discussing that because of in John Ashcroft's opinion, this series of cases by a single judge as that reflected on his fitness for office. And I think as John Ashcroft said on the floor, on October the 5th if I'm not mistaken, "whether we as a Senate should sanction the life appointment to the responsibility of a district court judge for one who has earned a vote of no confidence from so many in the law enforcement community in the state in which he resides."

And reasonable minds can differ on that, but clearly the fact that we are discussing those decisions and those qualifications has absolutely nothing to do with race. And so, that's the point of my...

SCHUMER: Let me — Mr. Chairman?

I was going to follow-up with a question, but if people are in a hurry, I do not have to do that. I'll defer. Go ahead. Is Senator Specter...

LEAHY: Senator Specter is concerned that you had gone over. You had gone over the last time. And he went over earlier this morning. But if you want to refrain and go back...

SPECTER: Well, not wait a minute, Mr. Chairman.

That red light's been on on the other side, including you, for a very protracted period of time.

LEAHY: Two minutes and 21 seconds.

SPECTER: And when I was questioning Judge White, I was cut off. And I just asked you a question, if the red light applies only on this side of the table? That's my question.

SCHUMER: I have no further questions, Mr. Chairman.

LEAHY: I think the record will show that both sides have gone way over their time and that the chair has given a great deal of time to both sides; did not run the red light on either of the two witnesses, both Republican congressmen speaking on behalf of Senator Ashcroft; did run the red light on a number of people who spoke against him, so.

LEAHY: Senator Thurmond?

THURMOND: Thank you.

Congressman Watts and Congressman Hulshof, I greatly appreciate your appearance today on behalf of Senator Ashcroft. Your testimony is very important and beneficial to him, and we thank you.

I also want to thank Sheriff Jones — Sheriff, hold up your hand, thank you — for being here. Your dedication and interest should be commended. I have the greatest respect for victims of crime. Crime is a terrible harm to our society, and society must be tough on crime. I thank you.

LEAHY: Is that it?

Now, thersenator from Illinois, Senator Durbin.

DURBIN: Thank you very much, Mr. Chairman. Congressman Watts and Congressman Hulshof, thank you for joining us today.

I want to say at the outset that, like John Ashcroft and I believe yourself, Congressman Hulshof, I support the death penalty and I voted for the death penalty. That is not the issue here.

When I read the Johnson case, this horrific, murderous rampage this man went on destroying innocent lives, including the lives of law enforcement, I can tell you that I feel sympathy for Sheriff Jones and all the families involved in this. There's no question about that.

I come virtually to the same conclusion that Justice White did. If Mr. Johnson was in control of his faculties when he went on this murderous rampage, he assuredly deserved the death sentence he was given. But I have to disagree with one of the points that you've made, Congressman. For you to characterize Johnson's defense as a dream team really is a stretch.

This man who committed these murders signed a confession. If there was any defense, it was question of his mental capacity. And his defense counsel decided to construct a defense, which is novel, the post-traumatic stress syndrome, and then proceed to argue that before the jury. And he used as evidence of that the so-called perimeter, which was around the defendant's house, and the fact that the tires on his truck were flat, to say this reminded the defended that he was back in Vietnam and he broke and he did these terrible things.

This dream team defense counsel had failed to interview two state troopers in a death case, who were on the endorsed witness list. And in failing to interview these two state troopers, this defense dream team didn't realize the perimeter had not been created by the defendant but by the police. And the air was let out of the truck tires by the police, as well. His entire defense disintegrated in front of him.

From the prosecution point of view, you were in a pretty strong position if the facts come out, as they were in this case. And his entire defense disappeared.

I raise a question about your defense dream team's competence that they would not interview two state troopers on the endorsed witness list, who clearly would have given them information to rebut their entire defense. They got right smack dab in the middle of the trial and it disintegrated in front of him. Justice White says, based on this, he doesn't think they did a good job as defense attorneys.

Well, I want to tell you this, if I had somebody important to me in my family who needed a defense attorney, I wouldn't be calling this dream team. And I don't believe John Ashcroft, if he becomes attorney general, would hire this defense dream team in the Department of Justice. At least I hope he would not.

Justice White sat here this morning and said what he said repeatedly, he didn't believe James Johnson should be released. All he believed is that he was entitled to a fair trial and that the counsel he was given did not give him a fair trial.

DURBIN: How this comes together is this: You have a man who has devoted his life to the law, fought his way to complete law school, to be the attorney for the city of St. Louis, representing the police department, the first African-American to the Missouri Appellate Court, the first African-American to the Missouri Supreme Court, a lifetime of hard work and commitment to law who reaches this opportunity to become a federal district court judge, and he is rejected after 27 months dangling before this committee on the basis of three court cases, the DaMass case, which was cited by Senator Ashcroft, in which Justice White's opinion was confirmed by the Supreme Court as the appropriate standard, the Kinder case, where days before a trial a judge made — not just insensitive statements but racist statements — and the question was raised as to his bias, and the Johnson case.

And I just have to say to you, Congressman, to have a man's entire legal career tossed aside, to have him characterized as pro- criminal, to ignore the clear statistics of his support for death penalty cases over and over again, raises a question in my mind as to whether or not he was treated fairly.

I'd like to give you a chance to respond.

HULSHOF: I appreciate that. It's interesting — if I could — I find myself in an unusual position, Senator Durbin, in that, as a tenure career prosecutor, that I'm defending defense counsel, the same individuals that, you know, you're adversaries against in the courtroom.

But let me put a couple of other facts out there because, as you stated — again, not taking notes from your statement — coming up with this extraordinary defense about this post-traumatic stress or, as lay people call, the Vietnam flashback syndrome.

When Mr. Johnson was arrested, he gave a detailed confession and made reference to his service in Vietnam. When the hostage negotiator was trying to negotiate over the telephone before Mr. Johnson was apprehended — he had taken an 82-year-old woman, allowed her to leave — she informed law enforcements that the man you're looking for is in my house. And so the helicopters come in, and they surround the house, and an experienced hostage negotiator on a bullhorn says, pick up the phone. And then they commence a couple of hours of conversation on the telephone which was recorded.

And during the course of that conversation, the defendant, James Johnson, was telling this highway patrol negotiator that: I'm the only one left from my platoon; my platoon leader has been killed. He even mentioned the name Sargent Kali or Lieutenant Kali — which of course if you follow Vietnam history, as this — by the way — highway patrol negotiator knew that Lieutenant Kali probably was a little older than Mr. Johnson. And so he was beginning to suspect that maybe Johnson was trying to conjure up his own defense.

But there were strong references during this back and forth, during the hostage negotiation time where the defendant Johnson was lacing his comments with gooks and other terminology that are consistent with those who had experience in Vietnam.

Not only that — regarding the competency of counsel, they brought in three of the most nationally acclaimed experts on Post Traumatic Disorder. In fact, Dr. John Wilson — it's in the record — who I had a very difficult time on cross examination with, who is known by some as the father of post-traumatic stress disorder, who wrote the diagnostic and statistical manual on PTSD, was one of their witnesses. And they had this group of experts, renowned around the country.

And so, again, reasonable minds can disagree over effective representation. But I can tell you, having been on the other side of this case in the courtroom, having to battle every day these exceptionally skilled attorneys, I believe that his representation was extremely adequate as far as assistance of counsel that the law requires.

DURBIN: If you will spare me one closing sentence — if reasonable minds can disagree, can you understand how one justice on the Supreme Court might dissent in this case and not be pro-criminal and not be soft on the death penalty and have his entire legal career besmirched by those comments on the floor of the United States Senate.

LEAHY: Both of us agree, go ahead with your answer.

HULSHOF: If, Senator, you will also agree that during the confirmation process of Judge Ronnie White that reasonable minds could agree or disagree as to his fitness to be elevated to the bench. Again, I offer no opinion to that. But John Ashcroft, who you all are scrutinizing, just as his record is appropriately before you and the American people as to whether he is fit to be the attorney general of these United States, he took that same measure seriously his role then of advise and consent as he scrutinized the record of another jurist from his home state, who had raised the concerns of some in law enforcement, as to his fitness for the bench.

And I think there was reasonable disagreement there, as well.

DURBIN: Thank you.

LEAHY: With that, we'll go to the senior senator from Pennsylvania.

SPECTER: Thank you.

Congressman Hulshof, Senator Durbin, I think you've both claimed very reasonable arguments. And the question which comes to my mind is, what impact does all of this have on the qualification of Senator Ashcroft to serve as attorney general?

I think it is very important to focus on the testimony which Judge White gave, and the centerpiece was the opportunity for him to clear the record and to clear his name on what he considered to have been an improper handling of this matter, where his record was not accurately stated. And I think he had that opportunity today. But he did not say John Ashcroft should not be confirmed as attorney general, and he did not say or question Senator Ashcroft's motivations as being political. That accusation has been made on this side of the table.

But as to what the witness said, he did not make that point. And I pressed him on it, with great respect for his record. And I do believe that the Senate ought to change procedures, and we may handle confirmations which are successful without going into great detail by senators personally, although staff and FBI and bar association and Justice Department does it, so that he had his chance to say his side of it.

But the question — and you've already answered this in a wide variety of ways, as to the good faith of John Ashcroft and the judgment which he made, do you have any doubt — this is repetitious, but one more time — that there was an ample basis for the good faith judgment of Senator Bond and Senator Ashcroft in coming to the conclusions which they did as to Judge White's confirmation?

HULSHOF: I appreciate the question. There is no question in my mind knowing John as I do, from as many years as a public servant in Missouri, elected twice as attorney general, twice as governor, once as United States senator, that he is a man of high integrity and character. And you probably know that as well as, or better than I, having worked along side your former colleague. And so, as he has answered many questions over his reasons for opposing the nomination of Judge White to the federal bench, I...

SPECTER: Without taking too much more time.

HULSHOF: I think that the fact that there are now individuals trying to target him with slurs, I think it is intolerable.

SPECTER: Well, this has been the most heated confirmation process that I have seen. I'm in now my 21st year of serving on this committee and the confirmation process as to Judge Bork was no picnic and the confirmation as to Justice Thomas was no picnic and the confirmation process as to Chief Justice Rehnquist was pretty heated and we've had a great many controversial proceedings. But the kind of charges which have come from this side of the table on John Ashcroft being political, as to Judge White, it has to be emphasi to stop him.

But it really isn't all that bad because when you strip down the issue we've been on for hours now as to Judge White, Judge White should have been treated differently by the Senate and there may have been some excessive statements made. But when you boil down Judge White's testimony, he does not say John Ashcroft should not be confirmed and he does not say that John Ashcroft acted out of a political motive or out of a biased motive.

My red light just went on. Thank you.

LEAHY: If the senator wants to finish his question, feel free.

I'll go to Senator Kyl. Not hearing an answer, I assume you don't want to.

Go ahead, Senator Kyl.

KYL: Thank you. Mr. Chairman, I would like to submit for the record a series of endorsements by various law enforcement organizations for Senator Ashcroft's confirmation, for the record.

Secondly, I want to commend Sheriff Jones for being here under these circumstances, and I look forward to reading your testimony, sir. In particular, I hope that my colleagues read that part of the testimony which makes it clear that it was you who asked Senator Ashcroft to oppose the nomination, not the other way around. And it was you who initiated the petition drive of law enforcement officials in opposition or, at least, in semi-opposition to Ronnie White's nomination to the federal district bench.

Representative Watts, as always, you are willing to sacrifice your time for others for what you believe is right. I thought your testimony was powerful. I've got to get that video for my grandkids.

And Representative Hulshof, I appreciate your fine legal analysis. Because so much of this hearing did revolve around this particular case, I think your expertise has been very useful to the committee. The bottom line here is that this was a very skilled group of lawyers who were hired to defend a case that, frankly, was indefensible. And I will also submit for the record the actual finding of the judge and the findings of fact and conclusions of law that the team that you characterized as the "dream team," to quote the court, was highly skilled and well-prepared for the case. It was not a matter of inadequacy of counsel. It was a matter of a case that, frankly, couldn't be defended. Clarence Darrow couldn't have gotten this guy off.

And if we're going to hold otherwise, we're going to put ourselves in this Catch-22; either the jury acquits or it's error because the defense counsel couldn't find a way for the jury to acquit. That would mean no one ever gets convicted in a case like this.

But I'm troubled by two other things. Not only has there been some focus on the insanity defense here, but as you pointed out, it's not just a matter of the finding here, but also whether or not the alleged errors of defense counsel — inadequacy of defense counsel — had any effect on the jury. And of course, the majority opinion of the case said: Whatever the situation with regard to the defense counsel, it had no effect on the jury.

KYL: Now, White disagreed with that.

But there were two other things pointed out. One of them was the statement that was read earlier, that while Mr. Johnson — this is in the dissent of Judge White — while Mr. Johnson may not, as the jury found, have met the legal definition of sanity, whatever drove him to go from law-abiding citizen to multiple killer was certainly something akin to madness.

Now, there's a legal standard for insanity, and a judge is required to apply the law. And this is a case where apparently Judge White was willing to fly by the seat of his pants, not apply the law, because it just didn't seem right to him.

But the other thing that hasn't been brought up is something else from his dissent, and let me quote from it, at least in part. After the whole business about adequacy of defense counsel, he says, "Even more troubling to me is an issue that the principal opinion doesn't address. It's the issue of mitigating factors." And the conclusion of Judge White is that because Mr. Johnson had not committed crimes previously, the jury might have been able to find that this four-time killer could warrant a sentence of life rather than death.

Now, we heard the testimony of Colleen Campbell, who said that a judge with a big heart gave a criminal one more chance and he used it to kill her son. If you're one judge out of seven on the Missouri Supreme Court you can make an error like Judge White did and it doesn't have a negative impact on society. But he wanted to give Jimmy Johnson one more chance, and that error could have had grievous consequences.

My belief is that he was wrong on the law and that in effect he failed the law exam here sufficiently to justify us to not reward him with a lifetime appointment to the federal district court. There were other cases as well.

But I just want to make it crystal clear that, however well intentioned, however decent Judge White is, and he clearly is from his testimony here today, the Senate has no obligation to elevate him to a lifetime appointment to the district court, given the fact that he made the kind of errors that he did and that the court itself concluded he did.

So I think that helps to vindicate the judgment not only of the Senate, but also of Senator Ashcroft in opposing him.

And incidentally, Mr. Chairman, just one final point. There has been an allegation by some on our side that Senator Ashcroft distorted the record of Ronnie White. Of course, every senator had full opportunity to clarify the record in the debate in the Senate. John Ashcroft was only one of 100, and there was full opportunity for debate and clarification if anybody had felt that necessary.

Thank you.

LEAHY: Thank the senator from Arizona.

The senior senator from Ohio.

DEWINE: I had no questions, Mr. Chairman. Thank you.

LEAHY: I can't tell you how much the chairman thanks the senior senator from Ohio.

(LAUGHTER)

Senator from Alabama.

SESSIONS: Thank you, Mr. Chairman. Not so lucky with me.

Congressman Watts, thank you for coming. Thank you for all you do to advance good and healthy ideas in America. You just did a great job in Alabama recently speaking to a large group of young people, Fellowship of Christian Athletes. And it was a special time and they were really inspired and motivated by what you do. Maybe that those kinds of things will last longer than any laws we pass around here.

Congressman Hulshof, I really appreciate your sharing with us here. And I tend to agree with John Kyl. The problem the defense had was, they had no defense. The guy was caught flat-footed and gave a detailed confession. So it strikes me that the defense was trying to do a home run, it's fourth and 10, on your own 30, and you just got to throw it up there. And a lot of times, it gets intercepted. Is that an unfair characterization of it?

HULSHOF: I think that's an accurate depiction. I think law enforcement in this case, especially those that did the investigation deserve tremendous credit. The judge who presided over the trial did her job. I think the litigants battled furiously for the respective sides. The jury did their job. And then, the case went on to appeal.

HULSHOF: And then we had the decision that we've been discussing.

SESSIONS: Now, with regard to judges in general, as a prosecutor, within the law enforcement and prosecutorial community, you know the judges that have consistently failed to follow the law; failed to give the prosecutor his fair due in court. And that's pretty well known around, isn't it?

HULSHOF: Yes, sir.

SESSIONS: Well, you know attorney generals like John Ashcroft and a prosecutor and former attorney general like I have been, feel an obligation and a duty when we put somebody on a lifetime federal bench, it's our responsibility to make sure, maybe give a particular assurance, that those people are going to give both sides of the case a fair shake. Would you think that's probably something that was in the former attorney general John Ashcroft's mind when he dealt with this case?

HULSHOF: I do, Senator Sessions, as well as was pointed out in the statement that I read from Sheriff Jones, the extraordinary, for lack of a better term, effort by some law enforcement groups who saw this dissent and perhaps with some other cases, who raised this red flag to Senators Ashcroft and Bond.

SESSIONS: And Sheriff Jones, we thank you for being here. I know most of the sheriffs in my state. Certainly, I knew the ones in my district when I was United States attorney, and the chiefs of police also. I respect them. I know they're good and decent people. And if they have serious concerns about a nominee, I'm going to listen to it.

And John Ashcroft voted for every single African-American nominee presented by President Clinton, 26 out of 27 that came to floor vote, and he opposed this one from his own district where he had a particular responsibility, it seems to me, and he had a serious objection among the law enforcement community.

The Fraternal Order of Police and others have just issued an endorsement for Senator Ashcroft. And I want to offer that into the record.

The Fraternal Order of Police have issued a specific statement supporting John Ashcroft for attorney general. They represent 293,000 members nationwide. Is that a premier law enforcement agency, Congressman Hulshof?

HULSHOF: It is, Senator Sessions.

SESSIONS: As have the sheriff's association, the National Latino Peace Officers Association said, "it is with sincere pleasure that I write on behalf of the men and women of the National Latino Police Officers Association in support of Senator Ashcroft's appointment to attorney general," and the letter goes on.

The Association of Former State Attorneys General have written, and here is a long list of former attorney generals around the country that have written in support of John Ashcroft for attorney general.

I would offer those into the record.

Mr. Chairman, thank you. My time has expired.

LEAHY: Did you have something further?

SESSIONS: I will stay within my time.

LEAHY: You'd be one of the very few on either side of the aisle that has, so I appreciate it.

SESSIONS: I would just offer that and say there are other letters of significance from organizations that should be admitted.

LEAHY: We'll keep the record open, of course, under our normal practice, for senators from either side of the aisle to submit letters or others.

Does the senator from Kansas wish to ask questions?

BROWNBACK: Yes, I would, if I could.

Thank you very much for coming in, Kenny, I appreciate that.

J.C., always great to see you. We came in together in the House of Representatives, and you've done very well, from your football days on forward. And Oklahoma's back in football, like when you were quarterbacking.

Briefly, if I could, Congressman Hulshof, I think because the central issue — one of the central issues here has been Judge White and his record, not just the one case, but his record of what it was toward criminals, whether he would be tough on crime or if he was going to be soft on crime.

BROWNBACK: I wanted to put into the record — and if you had a comment — the number of police organizations that were opposed to his appointment to the federal bench based upon that pattern of softness.

And I'd particularly like the Missouri Federation of Police Chiefs stated, this letter, September 2, 1999: We want to go on record with your offices as being opposed to his nomination, and hope you will vote against him for the federal bench, a lifetime appointment to the federal bench.

And I'd also point out the National Sheriff's Association saying, I'm writing to ask you to join the National Sheriff's Association in opposing the nomination of Mr. Ronnie White to the federal judiciary. NSA strongly urges the United States Senate to defeat his appointment.

And then, Sheriff Jones' letter — who I would to have loved to heard your testimony, as well in this case — opposed to his appointment to the federal bench.

And then the Missouri Sheriffs' Association, asking that we strongly consider his dissenting opinion in the Jones — the Missouri v. Johnson case.

Is that the pattern you spoke of, of why these organizations were all opposed to his taking the federal bench?

HULSHOF: Again, without my own personal comments about it, I think Senator Ashcroft has indicated both on the floor when he was your former colleague, discussing various cases. I think many of those that we've talked about, the Johnson case, there was a Kinder case, there were some others. Again, I think he was also had the opportunity to be questioned about additional criminal cases. I think even since Judge White's nomination was defeated, there were additional cases that, perhaps, were brought forth in this process by your former colleague, an Irvin case and some others.

And so, again, without offering my own opinion specifically about Judge White, that's not the purpose of me being here today. I think Senator Specter mentioned earlier that the point of these inquiries, of course, and the very difficult job that you have is the fitness for office for the office of attorney general for John Ashcroft.

HULSHOF: And I think that, especially as a fellow Missourian, these charges of racially motivated reasons for defeating Judge White's nomination are really — there's no information or evidence to that. And clearly, I would just urge — as I could — as John Ashcroft is a man of the highest moral integrity and character, I think he would make an exceptionally qualified U.S. attorney general.

BROWNBACK: Congressman Watts, you have been here, and thank you for participating. I don't know if you had had any follow-up comments that you would like to make. I direct your attention particularly to — there have been a number of innuendoes and allegations towards John Ashcroft's racial sensitivities, and if you know John and if you have any comments regarding any of those comments that others have made.

WATTS: Senator, I've just — I shared in my testimony and in my statement that I've dealt with John for the last six years. I've campaigned with him in his home state. I've worked with him on legislation concerning poor communities, under-served communities. I have always found John Ashcroft to have nothing but the utmost respect and dignity for one's skin color.

I heard John say yesterday in some of his testimony that his faith requires him to respect one's skin color. And I think that's the way it should be. So I have not — in my dealings with John, I have had nothing but the utmost respect for him when it comes to his dealings with people of different skin color.

BROWNBACK: Thank you very much.

LEAHY: Thank you both for joining us, too.

(CROSSTALK)

SESSIONS: ... for one more letter...

LEAHY: The senator from Alabama can interrupt any time he'd like.

SESSIONS: You're very kind. You've been very patient. This is from the Mercer County prosecuting attorney's office. In the note — some have objected to John Ashcroft's use of the word "anti-law enforcement," but this is the letter he had back at that time: Judge White's record is unmistakenly anti-law enforcement, and we believe his nomination should be defeated. His rulings and dissenting opinions on capital cases and on Fourth Amendment issues should be disqualifying factors when considering his nomination. Judge White has evidenced clear bias against the death penalty from his seat on the Missouri Supreme Court.

And it goes on for another page and a half. But I would just offer that as a basis for Senator Ashcroft to have said what he said.

LEAHY: I'm sure that will be part of the debate for the next several weeks, but I would also not as we have put in the record the endorsements from a number of significant police organizations and individual police officers in Missouri for the nomination of Judge White to be a federal district court judge. A number who endorsed him for that; a number who said they considered him far more concerned with victims than with criminals.

LEAHY: With that, we will...

HATCH: If I could just make one last comment, which of course makes my point that there's recent debate on either side of this issue and it's a little offensive to have some accusing Senator Ashcroft of insensitivity, and I think this particular panel has been very important in helping us to understand that.

I think we should be a little more careful before we start finding fault with colleagues. I don't find fault with those who voted for Judge White; I don't find fault with those who voted against Judge White.

LEAHY: Ultimately, of course, the question comes down to how 100 United States senators will vote on John Ashcroft.

HATCH: Right.

LEAHY: And that vote will not be held today. Eventually it will be held and that will be the question.

I do thank our two colleagues from the House, both valued members of that body, and they have been most patient. I will announce the program when we come back at 2:30. We will go back to questions of the panel that was interrupted to allow the members of the House to testify.

(RECESS)

LEAHY: Thank you all. And I — as sometimes happens in these things, we have to move things around, and I apologize for that.

I'm going to one of the few more senior members of the panel, and our former chairman, Senator Kennedy, and then go in normal rotation to Senator Hatch and then back to me.

I seem to — I don't think it's the altitude, unless it's the altitude of the office, I seem to have developed a bit of a nose bleed, so I'm going to step out.

HATCH: If I can, Mr. Chairman, when you go to me, I'm going to defer to Senator Specter who needs to be at another confirmation.

LEAHY: Of course. Would you rather go first?

SPECTER: No, but it's good of you.

KENNEDY: Thank you very much. And I want to thank the panel very much for the very, very helpful commentary. And I know the five- minute rule made it difficult, but the other information the committee is very, very valuable.

I'd like to direct my first question to Harriet Woods. On Tuesday and Wednesday, Senator Ashcroft testified that the state of Missouri was not responsible for the segregation in St. Louis schools and he was simply fulfilling his duty to defend the state when he so strongly opposed the city's voluntary desegregation plan. Is that an accurate description of what really happened?

WOODS: It is not, Senator. And I think it's one of the most troubling aspects to me of this nomination, because there is — as you well know and pointed out, there is no more serious challenge to this country than reaching a resolution on some of these lingering issues related to race. And the fact that he would say that he was just appearing as attorney general but protecting the state from liability, because there was no liability — the history of Missouri — at one time, it was a crime to educate black children. The ministers had to take them out on boats in the river. There was a constitutional amendment requiring segregation of schools.

I served in the state senate at a time, and frankly I think it lingers to this day, when there was resistance to providing more funds to the urban schools. So for these families to find no resolution to a good education for their children at either the state or local level, neither one of them really willing to assume the responsibility for remedying what was a long, clear injustice to African-American children was what brought on the federal suit.

And to have the attorney general of the state — not even seemingly who was born and raised in Missouri, who told us, well, yes, he knew about this, you know, 1954 decision when the black child came into his class, that he was not conscious that there was a state liability, really is worrisome because that could be transferred to the federal level: no liability, no responsibility. And I — you can tell, I'm really appalled.

KENNEDY: Well, I think, in fairness to the senator, he'd indicated that the state was not involved — we've had contrary testimony to that in the holdings of the court. This went on for some eight years as he was attorney general, and eight years as governor, am I correct, that this issue was not settled?

WOODS: It not only went on, but as you know — and I certainly don't want to take up all the time and I know you're going to have other testimony from other witnesses — but even to the extent of impeding or trying to block efforts at voluntary resolution, which you would think he would be happy about, in terms of if the local districts, if the state could assist a voluntary remedy, and if the courts themselves chastised the attorney general for foot-dragging and for getting in the way, I mean, it seems to me this is more than just routine representation of a state.

KENNEDY: On another issue that I raised with Senator Ashcroft on the first day, he defended his veto of two voter registration bills by citing support for his action from a few Democrats in the city of St. Louis. That's the situation where there was the one piece of legislation that provided the voting registrars for St. Louis, and then he vetoed on that, because he said that that was only targeted in one city. And then, legislature, as I understand it, passed legislation to encompass the whole state; he vetoed that, as well.

The results have been that it was a very dramatic falling off of black registered voters during that period of time, when other groups, like the League of Women Voters, were out registering in the county itself surrounding the city. I believe there were 1,500 active registrars out in the area just surrounding the city.

And for special reasons, that you know, this is really a function of the governor. The governor has this responsibility under — as I understand — under Missouri law.

Could you make any comment on that? What was happening at that time and what kind of value do you give to that?

WOODS: Well, I sometimes wear the hat as a member of the League of Women Voters. But what you're pointing out — I was interested in your inquiry, because it is quite true that in the suburban areas, the more affluent citizens, the Board of Election Commissioners did deputize the members of the League of Women Voters and other groups to make it easier to register. This was not true in the city of St. Louis where the majority of African-Americans live.

Now, the point, you really brought this out, but what it seemed to me needed to be brought out with — Senator Ashcroft said, well, he checked with the local Board of Election Commission. And the local Democratic — white Democratic elected official said, "We aren't interested in doing this."

WOODS: Everyone from Missouri, from the St. Louis, understands that by tradition there is the white south side in local politics and the black north side. And I can assure you that by tradition, by simple practical politics, the white Democratic politicians on the south side are no more eager than Republicans to get a big turnout, but because of its impact on local elections from the African- Americans on the north side.

So to say they agree, it's a little like saying that Eisenhower — President Eisenhower called up the politicians in Arkansas and said, "Hey, do you want us to just come in and do something about getting these kids into the schools?" And when they say, "No," say, "Oh, OK, we won't do it."

That was not his role. His role should have been looking out to make it easier for people of whatever background to be able to exercise their vote and not to reach agreements with politicians about keeping them from doing so. There's no reason why there couldn't have deputizing in the city of St. Louis.

KENNEDY: As a result of that failure, is it your understanding that there were hundreds of thousands of eligible black voters that were effectively denied...

WOODS: Well, I would say they certainly were...

KENNEDY: ... the opportunity to register and participating in the votes?

WOODS: It was certainly a discouragement for thousands of African-American voters, who had to go to a much greater length to do what could be done easily in more affluent areas.

KENNEDY: If I could, I'd like to ask Gloria Feldt on Senator Ashcroft's extreme position against contraception. He supported the Human Life Amendment which prohibited the use of common forms of contraception, tried to stop the federal employees health benefit plans when covering the costs of contraceptions approved by FDA, including the commonly-used birth control pills and IUD. He has used the power of high office to block against family planning services.

Let me ask you, would you tell the committee how much impact, if any, the attorney general's office could have on the right to access to contraceptives? What is your reaction, given the assure that you had received yesterday, and the power of the attorney general, what lies ahead in terms of the potential danger of actions that would limit those contraceptives to women?

FELDT: Thank you, Senator.

FELDT: Just to clarify the basis of this point, the medical, scientific definition of pregnancy is implantation. The version of the so-called Human Life Amendment that Senator Ashcroft has supported throughout his entire career is a version which would outlaw all abortion. And it defines, quote, "life" meaning personhood, giving the legal status of personhood upon fertilization.

What that means is that most of the methods of birth control that we are accustomed to having available to us, such as many kinds of birth control pills, the IUD, injectables and so forth, are thought of by Senator Ashcroft as abortifacients. And that is confirmed in the "Dear Colleague" letter that he signed to members of the Senate in opposition to federal employees' insurance coverage of contraception in their plans.

As attorney general, I think that his interpretation of when personhood — I mean the legal status of personhood begins would be a very major factor in interpreting and crafting and advising.

But there are other more, sort of, not as obvious areas where his interpretation could have an impact. For example, he could be asked by the Department of Health and Human Services to give some guidance with respect to family planning programs, Title X of the Public Health Services Act, which provides a wide array of — in fact, all medically approved birth control methods to low-income women who are primarily uninsured women, as well.

So it is not inconceivable that the attorney general could be asked to define what is a contraceptive under this program. And in so doing, render most of the commonly used, and by the way, most effective means of contraception, no longer usable within the family planning program.

Similarly, emergency contraception, which can be taken within 72 hours after intercourse and can prevent a pregnancy from occurring, could be given that same approach. And emergency contraception has been found by researchers to — if all women of reproductive age had access to it, emergency contraception could reduce the unintended pregnancy rate and the abortion rate by one-half. So ironically, the outcome could be actually an increase, ultimately, in the rate of abortion because of a lack of birth control access.

Senator Kennedy, I wonder if I just might add...

KENNEDY: I think my time — I'd like to, but I think my time is up, Mr. Chairman.

LEAHY: We will go 10 minutes to the senator from Pennsylvania and then five minutes to everybody else, because the senator from Massachusetts had 10 minutes.

SPECTER: Thank you, Senator Hatch for yielding to me. I have other commitments and obviously a tough day.

HATCH: We understand.

SPECTER: I appreciate a chance to take this round now. I can understand the concern which has been expressed about a woman's right to choose. And I agree with what Ms. Michelman has said that we wouldn't tolerate dismantling Brown v. Board of Education.

SPECTER: And similarly, we can't tolerate dismantling Roe v. Wade. And if I thought that Senator Ashcroft would do that, I wouldn't support him.

The issue about what will happen with judges and marshals and U.S. attorneys, at least the practice in the 12 years of President Reagan and President Bush, has been that senators have significant amount to say about who those individuals will be. And I can tell you with certainty that they'll be some passionate activism, to use your terms, Ms. Feldt, on that subject.

And the Republicans, who have been appointed in Pennsylvania, have been noted nationally for balance and moderation, if I may use that word.

When it is said that there's an expectation that the president would appoint a conservative, that really is an understatement, because of the way the political process works and the way the primary process works.

I spent the better part of the year seeking the Republican nomination for 1996 fully aware of the virtual impossibility of it, but believing that there ought to be a centrist view within the party. And being the only pro-choice Republican in a large field, with about 50 percent of the Republicans being pro-choice, it seemed to me that there was an opportunity.

I was the only candidate to favor retaining the Department of Education. At least we won that one, although I didn't win it, but there still is a Department of Education.

But I point this out, because of the concerns I have about having some balance within the Republican Party. We sought to change the platform, to take out the litmus test and to take out the provision to overturn Roe v. Wade. And President-elect Bush did make commitments on both of those lines, but they weren't as binding as a platform change, in my opinion. And I tried to do that. Not successfully.

And we do have very firm commitments on the record from Senator Ashcroft that he's not going to move to overturn Roe v. Wade by a constitutional amendment. And the fact is, he couldn't if he tried. We've had a Republican Congress for six years and now going into eight years, and nobody's even made an effort. At least not a serious effort.

And there's a firm commitment that he's not going to use a litmus test. And with the 50-50 split I think that's an enforceable commitment, both as to the president-elect and as to Senator Ashcroft, if he is, in fact, confirmed.

So that my question goes to the point about trying to get centrist Republicans to adopt the Feldt doctrine of passionate activism. And maybe even making a heretical suggestion that some Democrats might want to become Republicans to provide some of the Javits and Hines and Scott and Arlen Specter point of view. There are some places where people are assigned to both parties, so that there's a voice.

And if you have to give credit to the activists who have dominated the party, the Republican Party. They've done the work, they've been the passionate activists. And we do have a political system, and there is a way to make a modification of it. So that when we come to a hearing of this sort — and I haven't hidden it. I've wrote a New York Times article saying that — perhaps, a little presumptuously — saying that the president-elect ought to appoint centrists. But that's the kind of balance we need.

But if there is more of a base in the primary process, where a very small number control the outcome and nominate the president, there'd be a change.

SPECTER: Ms. Michelman, you're a practical — you're a pragmatist. I know that because I see you working out in the gym with some regularity; we go to the same health club.

How about getting some people who have your passionate activism to become Republicans, to influence the political process so that you have a voice in who the Cabinet officers are, even attorney general?

MICHELMAN: I couldn't agree with you more, Senator, that it is so important to recognize that the freedom to choose is not a matter of partisan politics. It's a fundamental right of women, and it is a fundamental right that guarantees women equality.

The reason that I mention Brown v. Board of Education in my comments earlier on was because there were signature decisions along the way. As those of us in society who were not guaranteed freedoms and equality by the constitution, we had to struggle for those rights. And Brown v. Board was an essential milestone along the way to full emancipation, full protection, full equality for African-Americans.

So too, Roe v. Wade, as Justice Blackmun I thought so eloquently put it, was necessary as women continued their journey toward full equality and full emancipation.

SPECTER: Ms. Michelman, I think...

MICHELMAN: So it is an issue that rises above and transcends. The problem we have here is that — I agree with you — we need more Republicans — and I have tremendous admiration for the fact that you did run, and I wish that you had been the nominee on the other side.

But that is a long-term effort that we have to engage in — both short term and long term...

SPECTER: Ms. Michelman, let me interrupt you because the time is fleeting. You said the other side; how about joining my side?

(LAUGHTER)

MICHELMAN: Joining your side?

(LAUGHTER)

SPECTER: Yes, how about joining the Republican side?

(LAUGHTER)

HATCH: Don't be so shocked here. I've never seen such a shocked look on your face.

(LAUGHTER)

SPECTER: You don't have to convince Senator Kennedy.

MICHELMAN: I am an independent, myself. I think with all kidding aside here, though.

SPECTER: I'm not kidding.

(LAUGHTER)

MICHELMAN: The issue before us is whether we are going to have an attorney general that will respect, defend and protect women's established constitutional rights.

While we work to bring more pro-choice Republicans into political positions, we have got to start now making sure that we don't have an attorney general who is a pathway to overturning Roe v. Wade.

SPECTER: Ms. Michelman, I have to interrupt you because time is fleeting.

MICHELMAN: The human life amendment is a little bit of a straw man here, with all due respect.

SPECTER: I have to interrupt because time is fleeting, and I'm not doing very well with you. I want to turn to Ms. Feldt.

How about joining up Ms. Feldt? How about being passionate to try to influence the other party, make it your party, and have a place at the table?

FELDT: Senator, as you may know, Planned Parenthood has a very large and very active Republicans for Choice group that is forming chapters faster than you can imagine all over the country and has been active, actually, for some years.

I just want to tell you a little bit about my own personal experience. You know, I ran the affiliate in Arizona for 18 years. That affiliate was started by Peggy Goldwater. And Barry Goldwater, Mr. Conservative himself, is the person who taught me that a true conservative doesn't want the government telling people what to do about their own personal, private reproductive choices.

SPECTER: Barry Goldwater was the pre-eminent conservative who said keep the government off your backs, out of your pocketbooks, and out of your bedrooms.

Well, we need to get those Republicans in Planned Parenthood more active.

MICHELMAN: We're working on that, Senator.

SPECTER: Marcia Greenberger, how about it? Will you join us?

SPECTER: I'm recruiting.

GREENBERGER: Well, the thing is, as I've been sitting and listening to this conversation, I, of course, come from an organization that is nonpartisan entirely, and I think the point of all of this is whether Republican or Democrat, for this Senate, for those who believe in Roe v. Wade, Senator Specter, as you do, the issue isn't what party you are, the issue is, what is your commitment to the principle of Roe v. Wade and other constitutional principles at stake here, including 14th Amendment equal protection, so important for women and minorities?

And I do want to say, respectfully, that you said if you were convinced that Senator Ashcroft would overturn Roe v. Wade, you wouldn't support him. And you cited a constitutional amendment and the litmus test points. And I wanted to go to those points precisely.

He can — and I think our concern is that he will — effectively overturn Roe v. Wade, not through a constitutional amendment which an attorney general, we agree, would not have a role in pursuing, but by defining Roe v. Wade, even if he says he's not trying to overturn it, in such a loose fashion that it is completely eviscerated.

And I want to say that when he came as the Missouri attorney general to this United States Senate in Washington in 1981 and testified in favor of the human life bill, bill, statute, not constitutional amendment, which Gloria Feldt described, and how extreme it was, he said, among the legal points he was making, that it was constitutional under Roe v. Wade.

When he has committed not to try to turn over Roe v. Wade — and I want to question the commitment he even gave on that, because he said he didn't think it was an agenda, he didn't really commit even on that point — what did he mean by Roe v. Wade if he could come and testify that Roe v. Wade was consistent with his human life bill that he was supporting? It is the antithesis of Roe v. Wade.

So for him to say that he won't seek as an activist agenda matter to overturn Roe v. Wade, but what he means by that is that he can still push for and find constitutional under Roe v. Wade as attorney general his human life bill, then I cannot help but say, the American women in this country and all of us who care about the right to choose were given no guarantee whatsoever by what we heard.

SPECTER: I appreciate your arguments, but it comes back to a place at the table, and a basis in the party. And I would urge you to consider what I have said so that you have a place at the big table. Thank you very much.

Thank you, Senator Hatch.

LEAHY: Mr. Susman?

I can imagine that the nurses in the case in 1983 that you mentioned earlier were very upset to be threatened to go to jail after then-Attorney General Ashcroft issued his opinion to stop nurses from providing access to contraceptives in family planning services.

My wife is a registered nurse. I can imagine what her reaction would be if somebody told her she would go to jail if she told a patient anything about contraceptives or family planning services. It sounds like something out of the 19th century.

Now how significant was this case, and the defeat of what then- Attorney General Ashcroft tried to do to the nurses in Missouri?

SUSMAN: I think you can tell the significance of the case by merely going to Exhibit A of the Supreme Court's decision, which list the amicus parties that were involved in this case who saw fit to have their voices from all around the country heard by the Missouri Supreme Court.

But you have to remember that they not only were going to charge the nurses with crimes of practicing medicine without a license, the state Board of Registration for the Healing Arts also told the physicians who were writing these standing orders that they would be charged with the crime of aiding and abetting the nurses by actually writing these orders.

This is a practice that was in effect in 40 of the 50 states at the time. It was not uncommon for advanced nurse practitioners to do all of these services that I listed. This was routine. This is the way of every county health department.

LEAHY: I want to make sure I understand this. Under then- Attorney General Ashcroft's position, the doctor wrote an order for a contraceptive. The nurse practitioner — and they require a high level of skill and advanced degree and all — they then were to pass out the contraceptive following the doctor' orders. They could both go to jail?

SUSMAN: Oh absolutely. Practicing medicine without a license...

LEAHY: Kind of a 19th century...

SUSMAN: It caused panic because many of the doctors in these family planning clinics resigned just from the threat, resigned their practices.

LEAHY: So the concern that you were expressing this morning is not just the question of Senator Ashcroft's position on a woman's right to choose, but on a woman's right to choose, in this case, the method of contraception?

SUSMAN: Absolutely. That's all the case dealt with was contraception. I mean, family planning clinics — and again, these were in the federally designated low-income counties, counties in which you did not have a single physician who would give prenatal or child birth services to women because of the low rate of pay established by the Missouri Medicaid program. Not a single physician in these counties offered services to indigent women. And this was the only outlet for indigent women to be able to control the reproductive destinies that were being shut down.

LEAHY: Mr. Hunter, I notice in your testimony you mentioned the Mound City Bar Association of St. Louis, one of the oldest African- American bar associations in the country, incidentally, one of the most respected ones, commended John Ashcroft in 1991 for appointing an African-American judge. Is that correct?

HUNTER: That's correct.

LEAHY: But you don't know for the record that the Mound City Bar Association, however, has come out against John Ashcroft to be attorney general. And they have stated very clearly that they oppose his nomination based on his treatment of Judge Ronnie White.

I will enter their letter into the record. But they say, among other things, they see the attack on Judge White as "an attack on all persons who possess similar values. The MCBA has long stood for the rights of the accused to get a trail free from bias. That Judge White's position is similar to us. Mr. Ashcroft has spoiled an opportunity for a federal bench to become a more diverse institution.

"Consequently, while we have been silent on this nomination up to this point, because of the impression left by previous statements of the association we must make it clear that this is not a nomination that we can support. Simply put, the chickens have come home to roost."

LEAHY: Ms. Woods, Senator Ashcroft, I feel, deserves credit for selecting Mr. Hunter as his first secretary of labor when he served as governor of Missouri, 1985 to 1993. And I understand, Mr. Hunter, you set a standard that other governors could look at for similar positions.

But Senator Ashcroft, in his opening statement, stated during the governorship he took special care to expand racial and gender diversity in Missouri's courts. I need to ask a little bit about that. As his lieutenant governor, I'm sure you're familiar with his record. And tell me if this is correct: Mr. Hunter was the only African-American or minority to serve in then-Governor Ashcroft's Cabinet, which is made up of 15 department directors, during his first four years. The African-American leaders in Missouri were critical of his failure to appoint more minorities.

WOODS: Yes. The answer is there was just one appointment, just as there was only one woman appointment.

The head of the National Association of Blacks Within Government noted in 1988 this one black member in Ashcroft's Cabinet, but that in, quote, "most offices in Jefferson City, it's an ocean of whiteness," unquote.

LEAHY: And do you know Representative O.L. Shelton?

WOODS: Oh, yes, the represent — and he reacted to the failure to sign the — oh, I'm sorry.

LEAHY: No, go ahead.

WOODS: You know, there's so many things that I think have caused the African-American community to feel that Senator Ashcroft could not be counted on to give them justice. And one of them was Senator Ashcroft — Governor Ashcroft's, then, being one of only two people who refused to sign the "One-Third of America" report, which was signed by former presidents, Republican and Democrat, and, of course, Coretta Scott King, because he said that it really exaggerated the plight of African-Americans.

And whether one differed or not with a degree, this was a chance in a national report to bring the attention of the whole country if you really wanted to provide leadership, if you really were concerned.

And let me just add one other thing, he and I served on something called the Board of Public Buildings, which handled contracts in state government. And it was perfectly obvious that minorities and women were not getting a full share of state business.

But his response was, you know, "Whatever we're doing is law." My response was, "We've got to be creative. We've got to reshape these contracts so that small contractors, as minority and women usually are, can get them." He wouldn't do anything, and ultimately, our office just refused to sign one of the contracts until they started the minority program.

So what I'm saying to you is about this — and I realize you gave me a specific question about his position — I just don't feel this was priority for him to open up more opportunities.

LEAHY: Does anybody here disagree that his human life act, which he introduced, was patently unconstitutional on its face, the act that he subscribed to and urged passage of, the act that would basically by a statute overturn Roe V. Wade? Does anybody feel it is constitutional?

(CROSSTALK)

LEAHY: I'll take it by your answers, everybody feels it's unconstitutional. Thank you.

Senator Hatch?

HATCH: Judge Robertson, I've been led to believe that in the nurse's case, Attorney General Ashcroft never questioned the constitutionality of the statute in question. Additionally, not only did the Office of Attorney General represent the board, it also filed an amicus brief on behalf of the Board of Nursing, urging an interpretation of the statute consistent with the position taken by the nurses.

HATCH: Now the Supreme Court's opinion, as I understand it, agreed with the position taken in the amicus brief. Am I wrong in that?

ROBERTSON: No, Senator, you're 100 percent right. When I read the news account of this Surmchief case, as the person who was responsible for approving much of the litigation in the attorney general's office during this period of time, it didn't read like anything that I had been involved in. And so I went and got some research done.

What I discovered was that the Board of Healing Arts was represented by private counsel and not the attorney general's office; that the doctors had enough money to pay private counsel and not use the state lawyers. That's first.

Second, that Mr. Susman filed the lawsuit after the Board of Healing Arts, on the advice of their counsel, indicated that they might be in violation of the law. The attorney general's office merely intervened to protect that constitutionality of the statute.

And I have the briefs filed, Senator, by the attorney general's office in the Missouri Supreme Court with me today. One of them, on behalf of the Board of Nursing, and I'm going to quote from it if I might, urges the court to find that the law under question should be interpreted, "broad in scope allowing flexibility in nursing practices." That's the first brief.

The second brief, filed on the merits by the attorney general's office, indicates to the Supreme Court merely that the attorney general's office was intervening for the sole purpose of protecting the constitutionality of the statute and took no position whatsoever on the question of what the nurses could or couldn't do.

All of these acts were consistent with the attorney general responsibilities and are inconsistent with some of the testimony that you've heard today.

HATCH: Well, Mr. Chairman, I believe Senator Kennedy expressed concern yesterday and again today that the St. Louis Board of Election Commissioners, that he alleged was appointed by Senator Ashcroft, may have refused to deputize private voter registration volunteers because these voters were primarily African-American and voted Democratic. At least that's the accusation.

Now I thought it would be of interest to the committee to know that the city board — and you correct me if I'm wrong, I don't believe I am — the city board had a long history of refusing to deputize private voter registration deputies, long before John Ashcroft appointed anyone to that board. I know this because a lawsuit was filed against the members of the St. Louis board appointed in 1981, alleging the same concerns that Senator Kennedy expressed, and the Federal District Court for the Eastern District of Missouri explicitly rejected charged of racial animus, finding that the board properly refused to deputize volunteers to prevent fraud, ensure impartiality and administrative efficiency. Now these conclusions were sustained by the 8th Circuit, as I understand it, in an opinion by Judge McMillan , a prominent African-American jurist.

Now, if I could, I'd like to submit copies of those opinions for the record.

Now, Judge Robertson, do you have anything to add to that? And, also, would you like to comment on some of the assertions of Ms. Woods here today? Your statement was followed by Lieutenant Governor Woods, who described a number of actions by then-Governor Ashcroft. So I'd appreciate it if you'd cover those two areas and any others you'd care to cover.

ROBERTSON: Thank you, Senator.

Governor Woods and I used to play tennis together when we were in Jefferson City. And we've even been on the same side, but it doesn't appear that we've made that jump today.

Let me suggest that the case that Governor Woods spoke of, with regard to the lieutenant governor's authority, comes from a history in Missouri where there was a governor who was literally held hostage in the state by a lieutenant governor...

(UNKNOWN): Excuse me, just for a moment, Mr. Chairman, it is very difficult to hear on this end. I just wonder, is there a way you could speak more directly into the microphone?

LEAHY: Well, really the sound system is leaving something to be desired. There are dead places in the sound. Maybe we could ask one of the engineers to see if they could boost it up.

Go ahead.

ROBERTSON: You see, the red light's on.

LEAHY: No, that's fine.

ROBERTSON: Some of the time's been eaten up here.

An 1883 of the Missouri Supreme Court, which was cited in the case to which Governor Woods referred, ruled that when the governor of Missouri was out of the state he could still receive compensation. And I think Governor Ashcroft's comments with Governor Woods at the time were designed merely to say, "Let's try and get along, but if we don't, I have legal authority here from an 1883 Supreme Court decision that makes it sure that I don't have to tell you when I leave the state."

ROBERTSON: Absent that authority, I believe he would never have had the conversation which he reports.

HATCH: Thank you. Just one last question. I'd like to ask Ms. Campbell this question. Some have tried to call John Ashcroft insensitive, among other things that are not justified by his private deportment and, you know, public record.

Ms. Campbell, I wonder if you would discuss whether you and the people you represent feel John Ashcroft is sensitive to victims of crime and why you and your groups think John Ashcroft is the right person to be attorney general from the perspective of crime victims.

CAMPBELL: Well, Senator Hatch, let me tell you — particularly this week, I wouldn't have been here if I didn't have a lot of people feeling very strong about this. And I'm sorry — Senator Feinstein wasn't here a while ago, but the 12 victims' organizations in the state asked me to come here because they had followed Ashcroft's record as to what he's been doing.

One of the things that he did was work on the victims constitutional amendment that Senator Feinstein was working on and was very involved in that. Not too many people got deeply involved in that — Senator Kyl did — and that tried to address, on a federal level, a lot of the inadequacies that we have on the state level.

If we had three days, I could go over the things that are happening that shouldn't be happening to victims. Victims are probably the only people that didn't do anything to get where they are. It just happens that anybody in this room could share the pain that I'm feeling right now just like that.

And things like — that I endured — and when I say I, I can only speak for myself because everybody this goes through this. Both of the men that strangled my son and threw him out of an airplane, they were being tried for special circumstances — the death penalty. In the state of California, they're not entitled to bail, but guess what? They had bail.

They appointed four defense attorneys for them. We had a deputy DA that, bless his heart, we were his first case, and he was very overworked. I had to ride up the elevator with the two men that strangled my son.

Now, I don't know what you can do about things like that. But that's trying a mom right to the top because I hate to tell you the thoughts that I had on that elevator. And we would have been able to not have the trial any further if what I wanted to do I would have done.

But there is a notice of appeal, a situation where they filed an appeal. The men were in prison. All of the family members of the murderers were notified. Not us. We read it in the headlines of the front paper that the men who murdered our son were out.

These are the things that John was trying to do something about in the victims' bill of rights, saying that people are notified, that they can protect themselves. It's just common sense saying that unless you're there, you don't know what is taking place in our country.

And if anybody says he is insensitive, I've got to tell you, I've got a bone to pick with them because he was on board a long time ago.

HATCH: Thank you very much.

CAMPBELL: And at this time, I'd sure like to thank my senator from the state of California for all she has done for victims' rights. I really do appreciate it. And that's a Republican to a Democrat, and I called and told her that I voted for her.

LEAHY: Well, you voted right. She's a good person. We're fortunate to have her on this committee.

You have a request?

KENNEDY: Mr. Chairman, in response to Senator Hatch's comments about the registration in St. Louis, I'd like to include in the record at this time what the registration was when Governor Ashcroft became governor and then the collapse in black registration in St. Louis when he left it.

KENNEDY: And then how it increased again when Governor Carnahan came in. I'll put those statistics — and I think they speak very clearly for themselves.

HATCH: Well, my point was the Democrats controlled the process. I don't know how you blame Senator Ashcroft for that.

KENNEDY: Excuse me, excuse me, they did not, when the governor was the governor, he controlled the process, Senator. He is the one who vetoed...

HATCH: I thought the boards controlled the process.

KENNEDY: No. He has the — under the Constitution, under the Missouri Constitution, he has the direct responsibility.

HATCH: Yes, blame him.

LEAHY: Gentlemen, please; a little understanding. We have to understand that if anything good happened apparently while Senator Ashcroft was governor then he takes full credit for it. And if things weren't done right when he was governor, then the governor had nothing to do with it. You've got to have it one way or the other.

(UNKNOWN): Just like the presidency, right, Mr. Chairman?

LEAHY: Just like the presidency. You can't have it both ways.

The senator from California?

FEINSTEIN: Thank you very much.

I want to welcome you here, Mrs. Campbell, very much. I'm very sorry what happened to your son. You should know that my leader on the victims' rights constitutional amendment is Senator Kyl. We got it out on the floor at the last session. We came acropper. We withdrew it. We will resubmit it this session. And I hope...

CAMPBELL: I want to be here when you do, and I don't want it weakened.

FEINSTEIN: Thank you very much, thank you. I appreciate that.

And Kate, if I might say to you, I'm really pleased that you mentioned — although it was very brief and I don't know if people really heard it — how important Roe really is in this whole effort of women for equality. And I think many people in this country think women were born with this equality. And they don't realize we couldn't inherit property, we couldn't get a higher education, we couldn't own property, we couldn't vote for so many years of this nation's life. And that the ability not to have politicians interfering with our reproductive system is really a very important concept in women being able to stand tall and make their own decisions based on their religion, their beliefs, their morality, their family. And that that's really what this is all about. And that's why it's so important to those of us who are pro-choice.

Now, having said all of this, I'm one of those that was really amazed when Senator Ashcroft said, "Roe has been settled, I respect that. I will not bring a case." When he also said, in response to a question, he will maintain the task forces.

I wanted to ask people that are really knowledgeable in this area, with respect to the access to clinics, which is known as FACE — everything here gets to be an acronym. I kind of don't like it; I like to say what it is. But in that act there are some specific terms.

For example, Section 3-E, the term "interfere with means to restrict a person's freedom of movement." Also, in 3-E, "intimidate means to place a person in reasonable apprehension of bodily harm to him or herself or another." Section 3-E, "physical obstruction means rendering impassable ingress to or egress from a facility that provides reproductive health facilities, or rendering passage to or from such a facility unreasonably difficult or hazardous."

Now there is some concern about changes of definitions. Do any of you support any change of definition, or are those the definitions that you feel are really important, and as part of any attorney general's mandate should be carried out?

GREENBERGER: I think those are very important definitions, but I also think that some of those words are open to some interpretation.

GREENBERGER: And it's very important, not only to have the definitions, but to have strong interpretations of what those statutory definitions means.

FELDT: I'll just add to that. And, again, I'm going to speak right now from the perspective of an on-the-ground provider, who's actually dealt with law enforcement at all the levels. I know less about the wording of the law and more about what it means in the real life of people who are trying to provide services.

But I do know this, and that is, that it has taken several years to actually hammer out an understanding that is now agreed upon to a reasonable extent and being able to be carried out to reasonable extent by law enforcement at all levels.

Because the U.S. Justice Department does not ever have the personnel to be able to enforce all of these laws uniformly across the country. It really does take using their bully pulpit and their leadership and their prioritizing of resources to make sure that their people will take the time and the energy and the leadership at the local level and the state level to bring together the various law enforcement agencies so that they are all working off of the same page. And so that they will use that, not just to apprehend a criminal once something terrible has happened, but rather to be able to prevent the violence and harassment and threats in the first place.

FEINSTEIN: Well, I would strongly agree with that.

Now, my interpretation — and I want to put this in the record — from what Senator Ashcroft said, is that he would fully enforce not only the word but the intent of the Freedom of Access to Clinics law. And that he would preserve the task force and that he would adequately fund it; "provide it with resources," I believe was the language that he used. And I think that's very important to get in the record.

MICHELMAN: Well, I'd just like to say, I agree completely it is important to get it in the record. And I appreciate the point that you are making.

You know, this law, the Freedom of Access to Clinic Entrances law, has been challenged repeatedly by those who oppose a women's right to choose abortion. And universally throughout the country, courts have said this law is constitutional; that it does not prohibit freedom of expression, freedom of speech and the right of those who oppose to pray and speak out and march with signs, et cetera.

MICHELMAN: But it continues to be challenged. And the question I think a lot of us have is with John Ashcroft — Senator Ashcroft, at the helm of the Justice Department, what kind of interpretation will he give? Is this settled law? Or is it not settled law?

You raised, Senator, he said he would honor and respect and protect settled law. Well, many of the questions that have come up in the area of reproductive rights law and policy are, according to many, not quite settled. Some of the questions and some of the issues that come before us, many of them will be a matter of interpreting the law.

And I — with all due respect to Senator Ashcroft, again his record of 25 years of unmitigated attempts, active participation in dismantling this law and the laws that protect women's reproductive rights, contraceptive access as well as abortion access, just speaks loudly to the view that it is implausible to think that he would as attorney general interpret — not just the enforcement part — but interpret the law that would guarantee women's rights. It's just implausible.

I think there's a lot of room for an attorney general to question whether a law is really settled.

FEINSTEIN: Well, I would be very happy if you — you see, I was very puzzled by the hearing because I saw a distinct change. And I accept and I recognize his point that he would enforce the law. And those of us that know him and who have worked with him have found that he's kept his word. And that's an important thing around this place, if somebody gives you their word that they keep it. And he has done that. Therefore, there is also a tendency to take him at face value.

So if you have any questions that you think we could further clarify this, because this is a very important area and I view this as coming, really, from the administration. And I think we need to know exactly what it is before we get hornswoggled.

MICHELMAN: Senator Feinstein, I just wanted to underscore that that is a point that I was trying to make; that I don't question his word. I think there may be miscommunication about what he means when he says "the law," and "settled law," and what you or others may think he means about the law and which parts of the law are settled, and which parts when they come up in the future he might say, "Well, that's an interpretation that isn't part of settled law."

So I think that he may be fully committed to enforcing the law as he sees it.

FEINSTEIN: Well, would you give us the specific question on the parts of the law that may not be settled, and let us ask his view in writing, hopefully to get a prompt response before there is a vote?

GREENBERGER: Yes, thank you, Senator Feinstein.

MICHELMAN: And one, just final comment, the concern is that as — you know, if he is attorney general and he is, as Marcia said, you know, interpreting the law differently from the way we believe the law is now states — the protections of the law guarantees, it'll be too late, after he's attorney general, for the women of this country, as, you know, we find that his interpretation of the law, whether it's settled or not in all the aspects of the law that come up for us. It'll be too late for women then.

GREENBERGER: Well, let me just respond. Just quickly.

FEINSTEIN: Very quickly. We're a 50-50 body. The Judiciary Committee is the oversight committee. Senator Hatch is a man of great integrity. He has heard this entire discussion.

I think if the attorney general were to depart from this, I would be the first one that would importune Senator Hatch to bring him up before the committee...

HATCH: I can guarantee you of that.

(LAUGHTER)

HATCH: I can guarantee that you would be the first to call.

(LAUGHTER)

LEAHY: I was going to finish your sentence for you, Orrin, because I know exactly what you meant.

LEAHY: You weren't agreeing that easily.

HATCH: And let me tell you, I know my place, too.

GREENBERGER: Can a witness insert a quick point? And that is, much of what we're worried about can never often come to your attention, to our attention in order to hold an attorney general accountable. That's what's so important here. Much of it is prosecutorial discretion. Much of it is private advice. Much of it is a matter of such, I guess, personal interactions that we, the public and unfortunately the Senate, would never know.

LEAHY: And that is a point that's been made a number of times in these hearings. And we will stop at that point.

I emphasize, because Ms. Greenberger raises the subtleties of something like this, that we have to look at. And that's why you have to make a judgment call.

There will be the record — following our normal thing, the record will be available for additional written questions to Senator Ashcroft.

LEAHY: The members of the Republican Party have something they want to submit, through Senator Hatch. The Democratic Party submit through me. He understands that he is available to respond to those. That is our normal practice.

I turn to the senator from Arizona, and obviously, he has some extra time because of this side.

KYL: Thank you, Mr. Chairman. I really want to direct my first remarks to Senator Feinstein, and then I'll talk to the panel for a moment.

First of all, the issues that have been raised here and the process is exactly correct as you've described it, in my view. There will be disputes as long as there are lawyers. And unfortunately, there will — well, my wife might argue with that. I'm a lawyer, recovering lawyer namely.

There will always be lawyers. There will always be disputes about words, and there will never be an end to litigation. And those who are responsible for taking positions will, therefore, always have to make judgment calls. You all are absolutely correct on that.

And therefore, you have to ask carefully: What kind of a person is it that is going to making those judgment calls? What kind of commitments has that person made?

Having acknowledged that, I believe that your area of concern here is misplaced. First of all, there's an assumption that John Ashcroft disagrees with a particular law that you're concerned with. He testified that he has no argument with that law.

I personally have no argument with that law. And I sit here today committed to you — committed to — Senator Feinstein, you won't have to first of all contact Orrin Hatch. You can contact me, Senator Feinstein, because I am committed to the enforcement of the law in every appropriate respect. Senator Ashcroft said that he was, too. So there shouldn't be any question about whether he will do so.

Does he like what goes on in the clinics? No. But is it appropriate to protect peoples' rights to enter any place without undue harassment and violence? Yes. A clear constitutional principle that should be applied in many different situations. In fact, I have personally litigated it in labor disputes.

It's not an unfamiliar legal principle. So there should be no argument here about that irrespective of his and my concern about some of the things that go on inside of the clinics.

If there is, Senator Feinstein, you let me know, we'll march down and talk to John Ashcroft. And I simply don't believe this is going to be a problem.

There are some other things you are concerned about, and I can't make that same degree of commitment because I'm just not totally familiar with it. But I make that commitment to you, personally, and I think I can also speak for the attorney general to be, I hope.

KYL: Now secondly, let me welcome you, particularly Gloria Feldt who also spent time in Arizona, a friend — at least I consider her a friend, notwithstanding some of our differences.

And I also want to again welcome Colleen Campbell.

You came here on your own dollar as I understand; is that right, Colleen?

CAMPBELL: Yes, it is.

KYL: You testified before — I think it was four years ago when Senator Feinstein and I had a hearing. And at that time, you were just beginning your political career. And I wanted to go back over — you are...

CAMPBELL: I just didn't tell anybody about it.

KYL: But you're now — you've completed your second term as mayor of the city of San Juan Capistrano, as I understand. Congratulations on that.

You also said that you served as chairman of the Peace Officers' Standards and Training Commission and serve on the California Commission on Criminal Justice.

So you come before us not just as a personal victim of crime, but also as a representative of others; is that correct?

CAMPBELL: I was authorized to represent the people that I told you about earlier. I guarantee everybody in San Juan Capistrano feels the same way I do, but I'm not sure about the police commission; didn't ask.

KYL: Well, Mr. Chairman, I just ask at this point to submit in the record a list of all the several organizations. I know Senator Feinstein would be interested in these too, because — in fact, I'm sure she's familiar with many of them. They're all California victims' rights organizations.

And one of the key questions — Senator Feinstein said to me yesterday, "I think one of the questions we have to answer is will Senator Ashcroft follow the law." And that is a totally appropriate question. She and I have a particular concern about that, because despite the law, and sometimes despite their best intention, even judges haven't followed the law frequently with respect to victims' rights. There are other things that are of a higher priority.

A Department of Justice study said that these laws are honored more in the breach than the observance. And I know — and unfortunately the current Department of Justice — here's where you get into this matter of discretion. We believe that the current Department of Justice has interpreted the law in such a way that it didn't feel it was in a position to help us. And as a result, it did not help us in getting our constitutional amendment to a vote on the Senate floor.

Now I happen to think John Ashcroft will see it a different way, and he will help us to do that. And that's one of the reasons why I am so strongly committed to him, because I am so strongly committed to this issue.

And I know from your testimony earlier, Colleen, that you said, "If this weren't so important, I wouldn't have come," considering the recent death in your family and the other tragedies that you've had to endure. I think sometimes we do have to feel some passion about these things. We do have to insist that the law will be enforced. But it's not just some of the laws that have been talked about here; it's also the victims' rights laws and hopefully amendments that we've been talking about.

Just a final point, since the red light just went on.

LEAHY: He has extra time.

KYL: I appreciate that, Mr. Chairman, but I also appreciate you've been trying to move things along.

Not everybody on the dais right here was able to hear all of the testimony. And with the greatest respect to Harriet Woods, who's served her state with great distinction, it was a totally different John Ashcroft described by Jerry Hunter than it was described by you. And if Jerry Hunter could take just 30 seconds, for the benefit of those who weren't here, to describe the John Ashcroft he knows, I think that that would be beneficial, since you had your opportunity to do it a second time.

HUNTER: Well, thank you, Senator Kyl.

I'll just take a brief 30 seconds, as you said. But I would like to go back and just briefly mention, in response to a question that Senator Hatch asked about the St. Louis City Election Board, and I will briefly comment that when Governor Ashcroft was elected, as I indicated, he tried to appoint responsible people in all positions in state government.

He came up with a group of individuals, both white and black, to put on the St. Louis City Election Board. One of his first nominees for the St. Louis City Election Board was a black attorney in St. Louis.

In the Missouri system, when a governor is appointing an individual that requires Senate confirmation, you have to get the state senator of that district to introduce that individual. Governor Ashcroft's first black nominee for the St. Louis City Election Board was rejected by the black state senator, because that person did not come out of his organization.

He came up with a second black attorney in a different senatorial district to put on the St. Louis City Election Board. That second black attorney was rejected, because, again, the two black state senators did not feel that they could introduce those individuals, because they did not come out of their political organization.

So from the beginning, any efforts to make changes in the St. Louis City Election Board were forestalled because the state senators wanted people from their own organization. And even though John Ashcroft was the governor, they felt they should be able to name those individuals.

As I mentioned in my testimony, Governor Ashcroft's office called me shortly after his election and said he wanted to find good people and particularly of all races, and African-Americans to appoint to positions.

And they asked me if I would work with him. I was practicing law in St. Louis at the time. And I worked with him for a year and a half prior to becoming the director of the Department of Labor.

And Governor Ashcroft appointed, as I indicated, numerous blacks to state boards and commissions. He appointed myself as department director. He appointed the first blacks to serve as administrative law judges in the state of Missouri, both in St. Louis, Kansas City and in St. Louis County.

Unfortunately, I think there is some testimony, obviously, which I don't agree with. Clearly, Governor Ashcroft had certain standards. He wanted people who could think on their own, who didn't have to call the ward leader and ask the ward leader how they should vote on issues. And I think that's one of the difference that I saw when Governor Ashcroft made appointments prior to that.

The other thing I do want to just briefly mention and I'll stop here, there was a reference — and I think my good friend, Ms. Woods, indicated it. And I don't want to make this too political — about how out-state Missouri would not want to fund education in the urban area St. Louis City — St. Louis and Kansas City.

And I think in just in this past election, our current governor, who was running against Congressman Jim Talent, was running ads in our state, Missouri, saying that Congressman Talent was going to take all the education money from rural Missouri and give it to the rich St. Louis County school districts.

HUNTER: And I heard those ads as I travelled throughout the state of Missouri. So I think that should be on the record, because, clearly, I thought that was unfortunate. It played to the suspicions that people in out-state of Missouri have of St. Louis. And that ad, clearly, was run to damage Congressman Jim Talent.

LEAHY: I should note — I've noted a couple times during these hearings, but we get some inquiries from the press and sometimes C- SPAN and others. They've noticed that some senators have been in and out of this hearing. It's not because there is any lack of interest on either the Republican or Democratic side, but we have several nominations going on at the same time.

I see the senator from New Hampshire, for example, has had a nomination hearing. Senator Feinstein, Senator Cantwell have been in Energy all day today.

Senator Biden and Senator Kennedy — actually, Senator Hatch and I have had to miss some committees we're on because we're doing this.

But just so that people understand and all the witnesses statements all wanting to be heard, all our staffs are here for all this; senators are in that not unusual circumstance of having to be four places at once.

For example, I'm on the Agriculture Committee. President-elect Bush has nominated, from California, Ms. Campbell, Ann Veneman to be secretary of agriculture. I wanted very much to be there today to applaud President-elect Bush for that appointment. I knew Ms. Veneman when she was deputy secretary of agriculture. I think it was an excellent choice. I think Californians probably feel that way. I'll think there will be unanimous support from Republicans and Democrats from California.

But that's just an example of what's going on. I just wanted to put that on the record so people would fully understand.

Senator Feingold?

FEINGOLD:: Thank you, Mr. Chairman. First, let me thank all of the witnesses and especially Ms. Campbell for coming here after personal tragedy.

I'll make a couple of comments, general points, before I ask a question. First, I want to commend the chairman for how he's arranged and handled this morning's testimony.

FEINGOLD:: The disagreement over the confirmation of Judge Ronnie White was controversial, potentially very divisive. And I hope that everyone on the committee could now agree that both sides were treated fairly, given ample time to discuss their positions, and, most importantly, that both sides had those positions aired with dignity.

And, I, again, thank the chairman.

LEAHY: Thank you very much.

FEINGOLD:: Second, I want to say again to the witnesses, some of whom have already testified before some who are testifying now. As I said in my opening statement, that I think the efforts that are being made to raise questions about this nomination are entirely appropriate. This is a highly controversial nomination. I'm glad the scrutiny is taking place, because I believe these issues have to be debated.

If nothing else, if Senator Ashcroft is confirmed, he will be more aware of the heavy burden he bears to convince all of the American people that he'll be fair and even-handed and work for all their all interests. And even though this is a difficult and grueling process, I don't think there's anything wrong for that kind of scrutiny. In fact, given the tough issues that this committee takes on and that an attorney general takes on, I can't think of a place where it's more appropriate.

Let me ask, Ms. Feldt, Ms. Greenberger and Ms. Michelman a question, after making a couple of comments. I agree with Senator Feinstein and just about everybody else that we were struck with the strength of Senator Ashcroft's comments about enforcing the law, probably a little stronger than many of us would have expected with regard to Roe v. Wade. And I think it's going to be difficult for him to parse his words if he becomes attorney general.

I would expect him, as some of the Republican members have indicated here, to live up to the spirit, not just the letter of the law. And I think that's exactly what the three of you are trying to address; that it will not be sufficient to simply somehow point to a few words in Roe v. Wade and use an interpretation that will completely undercut the right to choose.

So in that spirit, I would like you to say a little bit more about your concerns with the nomination. As you know, I've made this clear, I'm not very persuaded when you tell me about his votes and his vetoes. I don't buy that as reason to not put somebody in a position. What is more central, as Senator Schumer has well-said, is whether he can turn the spigot off, whether he'll enforce the law.

And you've talked about at least two areas that relate to this, the position or interpretation he may take or if he were the solicitor general on interpretations for the Constitution. Another is, literally, what would be done in terms of enforcing the law.

FEINGOLD:: And then, third, and I think you've already touched on it, but I'd like each of you to talk more about it, is his role as an administrator, in terms of personnel and budgets and resources. What concerns would you have in terms of the choice issue with regard to Attorney General Ashcroft, if he becomes attorney general, in terms of the administrative role?

We'll start with Ms. Michelman.

MICHELMAN: Well, my number one concern, of course, is that as an administrator, as a leader, the attorney general sets the tone, establishes the values and the principles by which the Justice Department carries out its duties. And with all due respect again to Senator Ashcroft, you've heard two days of testimony. It strains a bit of credulity, I think, to hear two days of testimony against 25 years — 25 years — of not just passive opposition, but active participation in trying to undo a fundamental constitutional right of women that took us a century to achieve. And it has taken many forms.

So my first concern would be the values and the principles he brings, the leadership he brings, and what values he wants the Justice Department to uphold.

The second is, what kind of people is he going to select? And if those values and those views and those principles are hostile to the integrity of women and to our established constitutional rights, it seems to me his selection of people who work for him will be informed by those views, and therefore we'll have more people in the Justice Department who will join with him in his interpretation of the law as it relates to reproductive rights.

His priorities — we've already talked about that a lot; what kind of priorities he will bring to bear for the Justice Department. I mean, you can, you know how it is as a manager, as an administrator, you have to establish goals — you can't do everything, you've got to establish your goals and your priorities. Is he going to put the full force of the Justice Department behind enforcing all of the laws that protect women's constitutional rights of freedom of choice?

I just think there are so many ways that as the attorney general he will — so many ways, a myriad of ways, some of which we've elaborated, some of which we haven't even touched on, some of which, as Marcia said earlier, are yet unknown or we won't even know about, that he will have an influence on the future of a woman's right to choose, and the laws that protect and guard our constitutional rights.

MICHELMAN: And the attorney general is a prominent Cabinet member. He's not, you know — it's, sort of, much more important, in terms of women's rights, than almost any — maybe the secretary of HHS. But the attorney general has a profound impact on the direction of the Justice Department, the influence on the president, and how interpretation of the law and even federal legislation will be carried out.

So I also think, you know, we do have the matter of what cases the United States will argue before the Supreme Court.

FEINGOLD:: Actually, I'm just trying to get at the administrative piece.

MICHELMAN: Well, that's an administrative piece, that's a decision-making...

FEINGOLD:: I was trying to distinguish that from other things because I...

MICHELMAN: Yes, OK, all right. Let me let others comment on that very question.

FEINGOLD:: Ms. Feldt? Thank you very much.

FELDT: Let me try to add to that and first say that I agree with what Kate said, though I won't repeat any of that. And I was listening very carefully to Senator Kyl in the exchange with Senator Feinstein. And I know that this question of Mr. Ashcroft is a man of his word is a very important one. And this does speak, Senator Feingold, I think to how I think he might handle the administrative elements of what he has to do.

So, I looked back at his record to, sort of, look at how did he handle some things as attorney general in Missouri. And I have to say that it is precisely because I think Ashcroft is a man of his word that I fear what he might do as attorney general of the United States.

When he was the attorney general in Missouri, he did, as Marcia has already mentioned, take very aggressive stances. That means that he did use resources. He did prioritize the use of resources and budgets and personnel and research and all of the things that go into it. He took a very aggressive approach, even to the point of testifying in Congress in support of that human life amendment that would have banned all abortions. That's not a usual step. I mean, that is an unusual and an unusually aggressive step and an application of resources, and it speaks to an example of what he might do.

FELDT: Secondly, because of some of the other work that he had done in shaping the state laws of Missouri, he ended up with quite a full plate of litigation. For example, Planned Parenthood v. Ashcroft that also dealt with some of the limitations that he wanted to see on the right to choose abortion.

Kind of moving to another arena, in terms of the school desegregation litigation, he was willing to apply an immense amount of resources and personnel and energy to fighting the school desegregation process. And the district court had ordered the state and the city board of education, as you probably know, to submit voluntary plans to desegregate, and he repeatedly delayed doing that.

FEINGOLD:: By taking your answer -- your concern is that the reverse was, sort of, happening here; that he would shut off the enforcement.

FELDT: I am not talking just about the enforcement, it's the administrative...

(CROSSTALK)

FEINGOLD:: Or the administrative resources -- he would shut off the resources that would be pursuant to protecting the right to choose.

FELDT: I think that there are big questions about that. And there are even bigger questions about the use of resources to find ways that cases could be brought...

FEINGOLD:: I understand.

FELDT: ... that cases could be shaped, that legislation could be shaped. And when he told the Missouri Citizens for Life that he would stop at nothing until there is a constitutional amendment outlawing abortion, I take him at his word. And I do not think John Ashcroft should be attorney general of the United States where he would have the ultimate ability to be able to shape that very act.

FEINGOLD:: Thank you.

Ms. Greenberger?

GREENBERGER: Yes, Senator Feingold, I wanted just to add some things that I'm not sure time had allowed us to get to before on this. And it's a very important question that you asked. And I know you asked it in the context of choice, but actually I know that your commitment to women's rights and to fighting discrimination is broad, and I'd like to try to include that if that's responsive to your questions.

First of all, let me say with respect to administration, personnel, budget, resources, in Senator Ashcroft's record in the choices of how he has allocated his budget priorities, we've heard comments, but I'm not sure that you were there when I mentioned earlier in the context of vetoes, one of the vetoes I talked about was picking out, through a line-item veto, funding for domestic violence that the Missouri state legislature had appropriated.

GREENBERGER: And they were very small sums, actually, so it was very instructive to imagine a governor at the time finding and striking those specific, quite small amounts out, when there was really...

FEINGOLD:: So you're suggesting he'd build his power as an administrator in the Justice Department in a similar manner that he used his line-item veto as governor of Missouri?

GREENBERGER: What I'm suggesting that that demonstrates, because the domestic violence program is within his purview as an administrator and it is of central importance to the safety of women, and nobody could be moved more than I, sitting next to Ms. Campbell, about how much — we've been holding each other's hand for this entire testimony — how much we want to avoid violence and victims, men or women, let alone children. For those of us who are mothers, there's nothing more horrifying than that.

And the Violence Against Women Program that Senator Ashcroft would be administrating, with so many discretionary judgments he would make about where that money would go within the line item — often it is a line item — how much it would go for this part of the Justice Department or another part is something that would be difficult to review. And his past actions on that administrative judgment is clear.

I want to also talk about...

LEAHY: Ms. Greenberger?

GREENBERGER: Yes? Sorry.

LEAHY: I'm going to have to — we're going to give everybody a chance to add to their testimony and submit things for the record. I'll let you complete your thought, but then we're really going to move on, out of fairness to both sides here.

GREENBERGER: Well, one other thing, quickly, I just did want to add is there is a lot of discretion with respect to laws that prohibit discrimination in employment, in education, central to women. And we saw, again, a major shift, a concrete shift, in 1981. And I wanted to give some statistics if I could that I haven't to mention involving disability discrimination, where suits went from 29 in 1980 to zero in 1981, three over the next three years. And I could go on, but that is some of the concrete concerns as an administrator.

FEINGOLD:: Thank you.

HATCH: Just one comment. Ms. Greenberger, you know, as the prime author, along with Senator Biden of Biden-Hatch Violence Against Women Act, I can tell you on our side John Ashcroft was one of the more sensitive people working on that with us. And in all honesty, a number of the provisions that are in that bill came from Senator Ashcroft. So I think it may be not fair to give him, you know, to ignore the credit that he deserves in that area.

I've been an active participant in that since the first passage of that bill. And a lot of people don't realize what our side does sometimes. But he played a significant role in that.

GREENBERGER: Senator Hatch, I know you have. And I remember, over many years, how you've come to support women, lady miners, I remember, in Utah, and child care and many other important things.

GREENBERGER: But I wanted to go back to my point: Authorizing and reauthorizing that bill is a very different matter than appropriating funding for those programs, and that's why I really wanted to focus on the funding issue.

HATCH: My point is that he is sensitive to these issues. And I think he'll do a very good job. And I intent to see that he does.

So I wouldn't worry too much, if I were you, because you have both a sincere man who's worked on it diligently, but you also have people up here, Senator Biden and Senator Hatch, who are going make sure that that's work very well.

LEAHY: The very patient, senior senator from Ohio?

DEWINE: Mr. Chairman, you keep on insisting on calling me the senior senator here.

LEAHY: You are the senior senator.

DEWINE: You make me feel old.

LEAHY: You're not the senior senator?

DEWINE: In service, that's correct.

LEAHY: Well, that's what I mean.

DEWINE: I appreciate it.

LEAHY: But what makes it worse, the first week after I became the senior senator from Vermont — I was about 10 years younger than I am now — to get introduced that with great pride we introduce Vermont's senior citizen.

DEWINE: Senior citizen. Well, at least you...

LEAHY: I never wanted to...

DEWINE: At least you didn't do that, Mr. Chairman. Thank you. Well, I guess I'm getting close.

Let me thank our panel for your patience and your testimony. I want to thank all of you for coming in today in this very important hearing.

Mayor Campbell, thank you for coming in. As other senators have said, we know this has not been easy, this has been difficult. But as you said, it's important. And we appreciate you being in here and we appreciate you testifying, not only for yourself, but for different victims' groups and for victims of crime.

I must tell you that John Ashcroft, in my experience, has been someone who brings a real passion to the issue of victims' rights. Politicians always talk about victims, that's very easy to do. It has not always been really, though, fashionable to back up your words with actions. And it's been my experience that John has done that. And it's been my experience that John truly brings, when you talk to him — because I have — about this — and I know, as you have as well — you just see the passion that he brings to this. And I think it goes to his empathy and his understanding and the fact that he has dealt with many victims as many of us have.

And when you talk with victims and understand, as the chairman has, you're a prosecutor or if you're an attorney general, I think you see that up close and personal, and you really understand it.

DEWINE: So I just want to give my own comment about that. And I appreciate it. And I think that John just brings an unbelievable passion to this cause. And I think that he will be the advocate, as attorney general, for the victims of crime in this country. He's done that in the United States Senate, he did it as attorney general, he did it as governor and I expected that he will do that as attorney general of our country.

John — and I don't know if this, Mr. Chairman, has been mentioned before, but one of the areas that John worked on and brings a passion to is in the area of missing children. There's a quote that I'd like to put in the record from Steve McBride , executive director of the National Center for Missing and Exploited Children branch in Kansas City. A brief quote: "John Ashcroft's ground- breaking initiative as governor and his efforts in the Senate to provide the necessary resources to find missing children have had a wonderful effect. Since he formed the first regional agreement with five governors, the recovery rate in missing children cases has increased from 60 percent to 94 percent," end of quote.

And as has already been mentioned, John was presented with a Congressional Leadership Award by the National Center for Victims of Crime, quote, "for leadership that expands national discussion about crime and victimization issues to include non-violent crime and its victims." He secured funding for $800,000 for the National Victim Rights Hotline in 1999, helped secure $100 million in increased funding to combat violence against women, helped to enact legislation increasing penalties for those who purposely defraud seniors with telemarketing scams.

And we could go on and on, but I think, Mr. Chairman, it is a record that John can be very proud of. But more important than that, I think it's a very good indication of what type priority John will have as attorney general of the United States.

We've seen a tremendous change in the way we deal with victims in this country. I started as a county prosecuting attorney in 1976, in my home county in southwestern Ohio, Greene County. And quite candidly, the crime victim agenda just wasn't there. We tried to help the victims. We did it on an informal basis. We worked with them as prosecutors and police, and tried to make everyone sensitive, but there were people who frankly fell through the cracks, literally, and we just didn't get to them because we didn't have any formalized programs.

Today, what we see in this country, as you know, although that still happens and sometimes victims are not treated correctly and we have to work on that, and fight about that and fight for that, but we are doing as a country I think, better, and we are getting some systems in place. We're doing it at the local prosecutors' offices, we're doing it in state attorney general's offices, we're doing it not only with crime victim compensation in some states, many states, but with very, very formalized programs. And the federal government plays and must continue to play a major role in this, a major role with funding. And this is an area where I just have every, every confidence that this is going to be a man who will make us very, very proud as attorney general.

And so, Ms. Campbell, thank you for coming in.

Mr. Chairman, I won't take any more time. I appreciate the chair's courtesy. And I again thank all the members of the panel.

LEAHY: I understand you are submitting something for the record there, too.

LEAHY: You submitted something for the record too or you just read it for the record?

DEWINE: No, I just read it right in.

LEAHY: OK.

The senior senator from New York?

SCHUMER: Thank you, Mr. Chairman. And I want to thank all of the panel. I know it's been a long day.

I guess, my first question that I'd like to ask of both Ms. Feldt and Ms. Michelman is about a law that's important to me, the FACE law, which I authored when I was in the House.

And, first, I wanted to clarify the record, because it hasn't been. On that FACE law, we did have an amendment in the bankruptcy bill which would prevent those who did violence and threats of violence against clinics from not to hide behind the false shield of bankruptcy to avoid the consequences of their actions. What we found was the FACE law was remarkably successful. Before the law, a large percentage of the clinics in America had been closed down — the family planning clinics — by blockades, by threats, and the FACE law gave the clinics the right to sue and it was remarkably successful.

Unfortunately, some of those sued, then decided to use bankruptcy. The most notorious case was that of the Nuremberg files, where the people who put these together had the names and addresses of doctors who performed abortions on the screen. When one died they were — when one was killed, they were taken off; when one was injured, they were grayed over.

And the clinic in Portland, Oregon, had been targeted, one of the clinics by this group, sued. I think there were 12 defendants. They won. They won a large judgment. And then each defendant went back to their home state and declared bankruptcy, making it extremely difficult for a poor little clinic to go around the country and follow them down.

So this law, the idea was you shouldn't — it was modeled on a law we used against drunk drivers. Same thing for someone who had hurt somebody, in terms of drunk driving would be sued and declared bankruptcy, and we said, "You couldn't use bankruptcy," then and so we did the same thing here.

Senator Ashcroft, it is true, as many of my colleagues have noted, voted on the floor to support that amendment. However, what they have neglected and he neglected to mention, is that he had voted against it in committee. And actually on the floor, it looked like it was going to be a tough fight to win it.

SCHUMER: Al Gore, who was then both vice president and candidate for president, came back from wherever he was because it looked like it might be a tie vote.

And at that point, at least the newspapers reported, maybe some would dispute it — that Senator Lott urged his colleagues to vote the other way so that Gore wouldn't have the drama of breaking the tie and urged a lot of his colleagues to vote the other way. It passed 80 to 20. We've never had such a pro-choice victory on the floor of the Senate, at least in the two years I've been here.

And Senator Ashcroft did vote the other way. But he had voted previously, maybe a couple of weeks or a month or two before, against the bill in committee.

But, my question is, since one of the most important functions of an attorney general, at least in the area of women's reproductive rights, is to implement the FACE law and support the clinics — of course, prevent the clinics from being shut down by violence or threat of violence — what do you think will happen if the FACE law is not aggressively pursued? If the task forces that are in place — I was glad to hear Senator Ashcroft, in response to a question from my colleague from California, say that he would keep these task forces in place, that he would fund them — I think his word was — adequately.

But what would happen if they were not, if the Justice Department played a less forward role in protecting those clinics? And maybe I'll call on Ms. Feldt and Ms. Michelman to answer that one.

FELDT: Sure. Thank you, Senator Schumer. I guess to put that in perspective, the first thing I should is simply review what happened before FACE, because that might be the best way for us to think about what might happen if it weren't appropriately enforced.

The very good news is that since the passage of FACE in 1994, there has been, really, a precipitous fall in, really, all of the major categories of violence against and criminal acts perpetrated against health centers compared to the five years before that.

The number of murders of medical staff dropped 40 percent. Attempted murders fell by 36 percent. Arson dropped by 58 percent. Attempted arson and bombing fell by 50 percent. And incidents of harassment, disruption and blockades also showed a decline.

In my oral testimony earlier today, I talked about what it felt like, as a provider, to be personally harassed, vilified, death threats, bomb threats — you name it, I have probably dealt with it.

As I began to think about the answer to the question, though — and I think all we have to do is look at how it was before and get a picture of what it might be like after if, in fact, it is not properly funded and not properly supported, and most importantly, not properly given the bully pulpit and the leadership in addition to the resources, because it really does require that.

FELDT: As I thought about my answer, I began to have this feeling of outrage that we should even have to talk about the need for such a law. It is truly outrageous to think that health care providers, that women seeking health care, that those of us who believe with all our hearts and souls that women must be able to control their own fertility if they are going to be able to enjoy any kind of equality in this world, have to even think about the necessity for such a law.

I apologize for getting on that little soap box, but I must say that I see the enforcement of FACE as being an immensely important issue. But the much larger issue even than that is the whole question of the legality and the social support for a woman's ability to determine the course of her own life. Thank you.

SCHUMER: Want to add something? My time is up.

MICHELMAN: Just a quick addition to Gloria's, I think, very fine response. Since FACE was enacted in '94, the Department of Justice has obtained convictions of 56 individuals in 37 criminal prosecutions for violation of the law.

Now as of this January, the Department of Justice has 53 remaining open investigations under FACE and related statutes. So, the question is, what do we fear, not only near the reality of threats to women and health care professionals, and to their lives, if it's not enforced, but will the attorney general continue with these investigations with great vigor and commitment?

Again, this goes to establishing priorities and goals. And we respectfully suggest that it's hard to believe that there will be great weight brought to this, given Senator Ashcroft's long record of opposition to a woman's right to choose.

SCHUMER: Thank you.

LEAHY: The senator from Alabama, Senator Sessions?

MICHELMAN: Thank you, Mr. Chairman.

Senator Schumer, I guess, as I recall the facts on the FACE legislation, Senator Grassley, who's a proud sponsor, and I, in committee, opposed this amendment — this bankruptcy amendment on bankrupting against these — any judgments, because we believed it was inconsistent and unprincipled targeting of one simple group.

MICHELMAN: And we discussed options and that kind of thing. And we saw it as a poison pill.

I think most people who supported the bankruptcy bill voted with us in the committee. But on the floor, Senator Ashcroft did choose to support it, much to my surprise, because I felt like it was, in fact, a targeting of one kind of protest, but there was a refusal on the part of the sponsors of that to be willing to cover people who blockaded work sites or things of that nature.

So that's, kind of, the inside ballgame story of that. I don't think it reflect a lack of integrity on this part. Certainly, he enforced a similar FACE law in Missouri, and as I understand, lectured some abortion protesters about the need to follow the law. And that's certainly been his career and commitment, I believe.

And on the abortion question, it's been suggested that he had — sometime ago, did not believe Roe was wrongfully decided. Attorney General Dick Thornburgh, when he was confirmed, testified he would not hesitate to ask the court to overrule it. Attorney General Barr, both of whom I served under, said that he thought Roe was wrongfully decided. He'd made some commitments on Roe v. Wade I think are quite significant and should be comforting to you.

Mr. Susman, you used the phrase, I believe, "he fought against court-ordered desegregation plans," in your phrase. I think that's an accurate description of what went on in St. Louis. I do not believe he should be characterized as having fought desegregation. That has upset me. And Senator Kyl has raised that point. I think that was an accurate legal description of what went on.

Mr. Robertson, you at least some of this period, I believe, were in the attorney general's office. This St. Louis plan involved a settlement of one school system's problems, is that right, or two? Was it one?

ROBERTSON: Well, the settlement that the attorney general's office ultimately challenged and continued to challenge was a voluntary settlement between school districts in the suburban part that had not been actually found guilty, and they invited the state to pay for it so that they would be absolved of that responsibility.

MICHELMAN: Well, Senator Smith and I have been working on a charity we'd like to see funded, and we've agreed it ought to be funded and we're going to ask Senator Kennedy to pay for it, I guess, or Senator Leahy, since he's here.

MICHELMAN: Basically, the people of Missouri were being asked to pay for a school system in the St. Louis area; all the people of Missouri, is that correct?

ROBERTSON: That's correct.

MICHELMAN: And the attorney general is a lawyer for all the people; is that correct?

ROBERTSON: That's correct. And the state was a defendant in the lawsuit and the law requires the attorney general to defend the state.

And I think it's important to make another point. And that is, that we — every year we're involved in budget negotiations to fund this plan. And that every year we only challenge those things about which we could not agree. To characterize this as being standing in the steps or the doorway of a schoolhouse by then-Attorney General Ashcroft I think is to mischaracterize what happened.

Further, his concern was the concern expressed by Representative Gephardt at the time that, "We're not helping children here, we're just moving them around." And as Representative Gephardt went on at that point to sponsor an amendment to ban busing in the United States Constitution.

MICHELMAN: This is the minority leader in the House of Representatives?

ROBERTSON: And reported in the St. Louis Post-Dispatch.

MICHELMAN: He agreed with Senator Ashcroft on this desegregation court plan, basically, or opposed it also?

ROBERTSON: Well, he did then. I'm not sure he would now.

MICHELMAN: Well, I think that's significant. I think we ought to know that. I'm glad to hear that.

Go ahead.

ROBERTSON: Well, we did what we thought was appropriate under the law to attempt, not only to help the children, but to protect the taxpayers. There was never a conversation, and I was involved in many of them, in which there was any statement by John Ashcroft that could be interpreted as, "We're going to stop integrating schools."

It was the plan that was being imposed that was the problem, not the end that was being sought.

MICHELMAN: Would you offer for the record, the article that shows that minority leader of the House, Mr. Gephardt, agreed with Senator Ashcroft that this was not a good plan for children in the St. Louis area?

ROBERTSON: I'd be pleased to do that if the senator would like for me to.

MICHELMAN: And I'd like to talk about this other one, this Kansas City desegregation case. Isn't it, in fact, perhaps the most notorious court order in the history of the United States? Isn't that the one in which the federal court in Kansas City, Missouri, ordered a duly elected commission to raise taxes?

ROBERTSON: I might want to fight with you over the word notorious. But it was, in fact, a very extensive...

MICHELMAN: The "taxation without representation" phrase was heard a lot in America by people concerned about it.

ROBERTSON: That's correct.

MICHELMAN: Federal judges are unelected, have lifetime appointments and are unaccountable to the people. I do not believe they should be in the business of raising taxes.

ROBERTSON: Well, ultimately, I think the United States Supreme Court agreed with you on that question.

MICHELMAN: Well, in this Kansas City case, correct me if I'm wrong, the federal judge ordered, among other expenditures, an eight- lane, 50-meter swimming pool, better than any swimming pool in any college in the state of Missouri, a 300-seat Greek amphitheater, a stage framed by white columns, a planetarium, greenhouses, dust-free diesel mechanic shop, broadcast cable, radio, TV studios, school animal rooms — I'm not sure what that is...

(LAUGHTER)

... private nature trails, overseas trips for students, model United Nations with foreign language translation.

MICHELMAN: The price tag for these being — eventually reached, I understand, $1.7 billion. Is that consistent with your recollection on the case that Attorney General Ashcroft resisted?

ROBERTSON: Well, that is an accurate rendition as I understand it, but I think I'd want to make the further point that never a single time did Attorney General Ashcroft direct the state not to pay money that had been ordered by the court, even when that order was being appealed.

MICHELMAN: Now, do you personally have to approach...

LEAHY: I know that some of the witnesses are going to have to lead, and just so people know, after Senator Durbin and Senator Smith ask questions, we will dismiss this panel.

(UNKNOWN): Forgive me for interrupting. Let me offer my apologies, but I was supposed to be in California today, and the last stage out of Dodge is 5:30, and if I don't leave, I won't make it.

LEAHY: Go. As my mother's family say, a diomo . In fact, if anybody else is in that same situation, feel free.

MICHELMAN: Just one yes or no question for Mr. ROBERTSON: Even after all of these expenditures, is it accurate that Missouri stripped the school district of its accreditation in 1999? Even after all of this?

ROBERTSON: The tragedy, Senator, is all of this money results in lower test scores and greater minority concentration in the school district.

MICHELMAN: We can do better. There are better ways to do business than the way it was done in Missouri.

LEAHY: And, certainly — I mean I'm here for the committee. We can have further rounds on this. But if we want to finish these hearings before the inaugural at noon on Saturday...

MICHELMAN: Well, I've gone over a lot less than the last two on this side of aisle went on.

LEAHY: I understand. Well, no — and I'm not cutting off the senator. If the senator wants to have another round, we'll have another round.

HATCH: I suggest that we enforce the five-minute rule, and let's do it unwaveringly.

LEAHY: We have — I see Senator Brownback is back. The senator has not had his questions, so it will be Senator Durbin, Senator Brownback, Senator Smith. We will then, Senator Hatch and I — we'll break and Senator Hatch and I will invite — we'll break for five minutes — and Senator Hatch and I will invite all senators from both sides out back to talk about seeing which ones we can finish tonight and what time we'll start in the morning.

Senator Durbin?

DURBIN: Thank you, Mr. Chairman. I'm also heartened that there's a reminder to enforce the five-minute rule by the time it gets down to this end of the table.

(LAUGHTER)

LEAHY: What is it, 10 minutes here, five minutes there?

(LAUGHTER)

DURBIN: But I'm also reminded of Muriel Humphrey's admonition to Hubert Humphrey that a speech does not have to be eternal to be immortal.

(LAUGHTER)

So, I will try to be brief. And first, let me thank Ms. Campbell. All of the witnesses made a sacrifice to be here. You made a special sacrifice, and thank you for being here. It makes a big difference; we really appreciate that.

I'd like to ask some of the panelists here and Ms. Greenberger, Ms. Feldt, Ms. Michelman,and Ms. Woods as well; most of you heard the testimony of Senator Ashcroft relative to what is settled law.

DURBIN: I think that's going to become a very important phrase should John Ashcroft become attorney general. And I found it interesting in his opening statement that he said he believed Roe v. Wade and Casey were settled law in the land. And yet, when Senator Schumer and I tried to follow up on the whole question of the partial birth abortion ban, to ask him what that meant, I'm not certain we received a direct answer.

I think we understand that most Americans believe that third-term late abortions should be rare and confined strictly to those cases where a woman's life or health are in jeopardy. We have debated this over and over in the Senate, and Senator Santorum of Pennsylvania, who offers this regularly, has said he will not include the protection of a woman's health when it comes to these late abortions. And many of us have said that is an important element to include.

We have been criticized by some who say that we are insensitive, but that has been the case, that has been the vote, and that has been, I guess, the outcome until this case comes along the Nebraska statute. The Nebraska statute did not include an exception for the health of the mother in late abortions and was sent to the Supreme Court for a decision, and the Supreme Court, I thought, gave a very clear answer to the Nebraska statute; it threw it out, and said that under the Casey decision, you have to protect not only the life of the mother, but the health of the mother, unequivocally. They said the Nebraska statute didn't do that.

The point we tried to make yesterday and ask of Senator Ashcroft on this whole settled law concept is, what would you do with the Santorum bill if it came to you again, and didn't have the health protection provided by Casey, reiterated by the Supreme Court in Stenberg v. Carhart? And unfortunately, what seemed like an unequivocal answer in the beginning about what he would do as attorney general fell apart.

When he was asked by Senator Schumer if he'd advise the president to veto such a bill, I'm not sure we got a straight answer. When I asked him whether or not a Santorum bill without the health protection came up before the Supreme Court, what he would do as attorney general, again he equivocated. That leaves me uncertain as to how this senator, who has been resolute in his opposition to a woman's right to choose throughout his public career, and has told us in the last 48 hours he's a different person in a different job with a different attitude, could fail to answer that basic question.

DURBIN: Ms. Michelman, could you respond your view of his response yesterday?

MICHELMAN: Well, I would offer that you raised a very critical challenge to Roe v. Wade, which are these bans on abortion procedures that you have dealt with, as a Senate; this Congress, indeed, has over the last five years.

And that challenge that these procedures bans raises go to the very heart of Roe v. Wade. Not only did they not protect women's health by ensuring that exception, they also were written so vaguely and so — you known, in such a way that they would, in fact, criminalize many commonly used forms or many commonly used procedures from the earliest moments of pregnancy.

Also the ban did not follow and was not Constitution under Roe, because, again, it would cross trimester lines. I mean, the thing about Roe v. Wade was, it was a carefully balanced decision, recognizing, guaranteeing women a right to choose in the first two trimesters of pregnancy, without any government interference.

In the last trimester, Roe said, indeed, states may prohibit abortion, except there have to be exceptions for when a women's life is at risk and her health is at risk. These procedure bans that you are talking about, have not included those exceptions and have not made sure that these laws are constitutional under Roe.

So it seems to me that what Senator Ashcroft found himself doing was having difficulty when it comes right down to establishing that he will enforce the law. In the question of these cases he wasn't able to guarantee or even talk about the fact that these cases are a violation of what he considers established law. They were violations, they were attempts to overrule Roe, they were clearly unconstitutional. The Supreme Court has already said this. And he wasn't able — with the same force that he has been saying for two days, that he will uphold Roe, he wasn't able to see that case.

So I think it, again, just raises the question as to whether two days of testimony can offset and overturn 25 years.

DURBIN: Thank you very much.

Thank you, Mr. Chairman.

LEAHY: Thank you.

Senator Smith?

SMITH: Thank you, Mr. Chairman. Is it five minutes now, Mr. Chairman?

LEAHY: We're trying. We're trying. Hope springs eternal at this end of the table.

HATCH: It is five minutes, though.

LEAHY: I'm going to let — for your side — I'm going to let Senator Hatch run the clock.

HATCH: I refuse to handle the gavel.

(LAUGHTER)

SMITH: Don't start the clock, until you guys...

LEAHY: You're right, go ahead. I'll make sure you get it.

SMITH: Ms. Campbell, let me say what others have said to express my sympathies to you for what happened and for you to be here and sit through a debate on other matters, too. It's very difficult and my heart goes out to you. That's a terrible, terrible thing to have to experience.

Ms. Michelman, as you might expect, we have differences over this issue.

SMITH: And I guess — and I'm not going to debate it here, obviously — but I guess the only thing I would say is, aren't we really, in essence, conducting an extension of the campaign here? I'm assuming that your organization, the National Abortion Rights League, didn't support Governor Bush, and that's obvious. He won. Doesn't he have a right to pick his attorney general?

MICHELMAN: Senator...

SMITH: Please, not out of disrespect, but I do have a couple of other points.

MICHELMAN: OK. Let me just say I think this threat to the constitutional right of women to freedom of choice is much too serious to relegate it to political — dismissing it by referencing the election.

Of course we endorsed a pro-choice candidate. But we fully respect the president-elect's right to choose his Cabinet. And we fully expected him to choose a conservative nominee for attorney general, and, in fact, one who would oppose Roe v. Wade.

This is different. This candidate is way outside the mainstream of any kind of thinking — you know, in opposition to contraception. So there's much too much at stake. This is not about the past. This is about the future of a woman's right to choose. And that's why we so strongly oppose this nominee.

SMITH: And I understand. I respect you for your views. There are those, though, that would say that in 1857, when Dred Scott was not allowed to sue in federal court because he was a slave and therefore property, they thought that was wrong. I'm not saying it's the same issue, obviously, but — or the Plessy v. Fergusson, that was the law of the land at one time and that had to be changed. There are those who respectfully would disagree.

But let me just see if I could focus on it this way. So if that is the disqualifier, again, I just would remind you, when Senator Hatch had the gavel when Janet Reno was confirmed — I could be wrong, correct me, Senator Hatch if I am — I don't recall whether it was — maybe there were requests made, but Senator Hatch did not have pro- life advocates here at the table and criticizing Janet Reno. I voted for Janet Reno, as did all of my colleagues, and I disagreed with her vehemently on this issue, because Bill Clinton won the election and, respectfully, I thought that he had the right to pick his attorney general. And I really believed that she would enforce the law of the land, no matter what it is.

I think Senator Ashcroft — I know Senator Ashcroft will do likewise.

But, with respect, let me just see — I'm trying to figure out who is acceptable. William Rehnquist, who is the chief justice of the United States, if he had been asked to serve as attorney general, he's pro-life, he's voted that way. If he were asked by President Bush to be attorney general, would he be acceptable to you? Just yes or no, because I'm trying...

MICHELMAN: Well, I think we're talking about Senator Ashcroft...

SMITH: I know we're talking about, but I'm trying to understand the criteria — I'm trying to understand the criteria which you...

MICHELMAN: The criteria, Senator, is about an attorney general whom Americans can count on to respect and defend and protect their established constitutional rights, and Senator Ashcroft is not that attorney general.

SMITH: Well, Senator Ashcroft has had experience that many to this job have not had as attorney general. And with one or two notable exceptions, I think, was absolutely strictly adhering to the law. You can be an advocate, you're always an advocate in your heart, but there is a difference between advocating as a legislator and as Senator Ashcroft would legislate aggressively on what he believes, as you would, but as enforcer of the law, he has an obligation to do it. He took an oath to do just that.

So I'm just assuming that — Senator Hatch, is Senator Hatch qualified? He's a supporter of the human life amendment, would he be acceptable to you as the attorney general of the United States?

I know I'm not, but I'm just curious about Senator Hatch.

(LAUGHTER)

SMITH: Let me just point, with respect to all of my colleagues, some who I'm going to quote here, I'm trying to make a point is, I think you have to be fair and not extend — this is a pretty important nominee I respect. I understand that's a lifetime appointment. But, you know, we saw apologies down the table on the other side for Ronnie White. I didn't realize that one senator could apologize for another senator, but apparently that did.

So in that spirit, I'll apologize to Clarence Thomas and I'll apologize to Robert Bork for what the Senate did to them.

But let me just say why I think you get in trouble. Let me read a quote. "Wanted or unwanted, I believe that human life, even in its earliest stages, has certain rights which must be recognized, including the right to be born. Once life has begun, no matter at what stage of growth, it is my belief that termination should not be decided merely by desire. When history looks back to this era, it should recognize this generation as one which cared about human beings enough to fulfill its responsibilities to its children from the very moment of conception."

That wasn't John Ashcroft who said that. That was Ted Kennedy who said that two years before Roe v. Wade in 1971. So, very interesting.

So I'm — I guess what I'm saying to you is — and we could go on and on. Byron White, who was the attorney — who worked under Robert Kennedy at the attorney general's office, appointed to the Supreme Court by John F. Kennedy; quote, "I cannot accept the court's exercise of" — this is in Roe — "by interposing a constitutional barrier to make state efforts to protect human life and by investing mothers and doctors with the unconstitutionally protected right to exterminate it."

The point is people change. People enforce the law regardless of their views. And John Ashcroft is going to be confirmed, and when he is and you look back on this period of time eight years ago — I know him well — you will find that he will enforce it. There are going to be times he's going to enforce it he wish he didn't have to, but he will.

And that's the issue here. And I wish that we were not extending — and I say this respectfully — I think we are extending the campaign. None of this on this side that I know of made any effort to derail the Reno nomination or embarrass her in any way because of her views. And I think that's, frankly, the difference in this bipartisan — so-called go along, get along bipartisan Senate. That's really the difference as to the two sides on this issue.

LEAHY: Senator Brownback?

BROWNBACK: Thank you, Mr. Chairman. And thank the panel for being here through a long day for everybody.

I just want to make a couple brief points and recognize my limit of five minutes. And everybody starts getting antsy when I get up because I'm the only thing that stands between them and the door. So, it shortens things up.

One of the things that's been troubling to me is that it seems like that you're going at the nominee here and trying to paint him in an extreme light, when the issue is not the point of view that he has taken, which I think can be fairly categorized in many cases as quite mainstream, but really that what's it about here is whether he'll enforce the law.

BROWNBACK: And then you try to, by extension, saying, "OK, he's taking this political position, therefore that's how he will enforce the law." And I don't think that that's really a fair characterization.

I realize you have differences of opinion with the nominee on the issues; partial birth abortion, you have differences of opinion with him on that. But I don't think you could put the nominee's position as extreme on partial birth abortion.

He voted for the Santorum bill — that's where I've got a poll here shows 73 percent of the American public is. Your organization opposed this bill on the partial birth abortion. And I think your group would be deemed more outside of the mainstream on that particular issue.

On parental notification, number of people, over 80 percent of the American population believes that parents should be notified if their underage daughter is having an abortion. Your organization has opposed that. The nominee says that parents should be notified.

And then you use these sorts of other positions to say he's outside of the mainstream, you're in the mainstream. Therefore, he can't be trusted to enforce the law, not the position that he's taken.

The only overall point that I'm trying to make here is, is that you can take a lot of different positions from people and we can — let's look at the issue of partial birth abortion or if you wanted to look at parental notification of this, where the public is generally saying, "We don't like partial birth abortion and we think parents should be notified." And you're outside of the mainstream on that. The nominee is within it. But that's irrelevant on both sides.

The issue is, he has stated that he will enforce the laws, that he will uphold the laws of this land, that he has done that in the past and that he will do that in the future. And so I don't think it's a fair characterization to try to paint, in one way off, a position. And, therefore, then pull it all the way around to say, "This going to be how he will be as attorney general."

I've noted that NARAL has opposed a number of nominees in the past: Justice Souter, Justice Rehnquist as chief justice, Justice Scalia, Justice Thomas, William Barr as attorney general. So I know that this is a consistent position that you've taken in the past, and I respect that consistency that you've been there.

But I don't think that this is a fair way to say that your attorney general will act extrapolating off of policy positions.

BROWNBACK: So I respect your willingness to do it, your desire to stand up and say so. I would just hope that we would look at what we're about here today, and that's not partial birth abortion, not debating parental notification, but whether or not this nominee will enforce the law and I don't think you can extract from a policy position that note.

So, Mr. Chairman, I realize it's late in the day for this, but I appreciate the opportunity to speak and thank all the panelists for being here and being willing to testify.

LEAHY: Every senator has a right to be heard on this, no matter which side they're on. And I think the senators have realized the chair is trying to protect the right of each senator on each side, both sides of the aisle to have that time. And that's I've allowed extra time several times on both sides of the aisle.

If there are no further questions.

BROWNBACK: Mr. Chairman, may I make a ten-second comment?

LEAHY: Of course.

BROWNBACK: One other item I neglected to mention was that on your scorecard in 1999, you gave a 0 to Senator Ashcroft. You also gave a 0 to Senator Breaux, and a 5 percent to Senator Reyes, which means under that criteria neither one of them would be qualified to be attorney general either.

LEAHY: As soon as Governor and now President-elect, soon to be President, Bush nominates either Senator Breaux or Senator Reid to be attorney general, we'll get right to that issue.

BROWNBACK: It will be very interesting to see where the opposition comes from.

HATCH: Now, if I could add something, we're glad to see you back. It's been eight long years without you.

LEAHY: That's very good.

HATCH: You know, I've missed you.

LEAHY: OK. Listen, be serious, nobody else got a question? If they do, or don't. Then we will recess for five minutes. Both parties will meet out back to decide where we go, how far we go tonight.

(RECESS)

HATCH: Let's have order.

LEAHY: People understand, we'll start with this — this almost like the Durbin lament, when I see we get down towards the end, and we start saying, "By golly, we're going to keep time." As Senator Durbin has pointed out to us, why didn't somebody think of that earlier before they got to him?

We're going to try and do that. We'll go through this panel. We're going to go until about 6:00 — I say about because I'm obviously not going to cut somebody off at the middle of a question or testimony — and then start talking about tomorrow. We have to give up this room by around noon tomorrow because of various inaugural events.

And Senator Hatch and I are determined to wrap this up. Because there are still questions that are being submitted in writing to Senator Ashcroft and others. We've got to give — in fairness to them, in fairness to Senator Ashcroft — we've have to give him time to complete the paperwork for the Senate that is required and also give him time to respond to the questions that will be asked.

So, did you want to add anything to that, Orrin?

HATCH: No, I think we should try and finish — if we can move fast, we might be able to get this panel over by 6:00. Let's try.

LEAHY: We'll do our best. On the other hand, I would also note for the record, everyone on this panel has been waiting very patiently for a considerable period of time. And I am not going to have anybody leave here feeling they did not have the chance to make their statement because of a clock.

You all have serious things to say. You all have a strong reason for being here.

Mr. Mason, we'll begin with you, sir.

MASON: Thank you very much, Senator.

A little, a brief commentary about my background, if you will. I grew up in Nashville, Tennessee, under very difficult financial circumstances.

(CROSSTALK)

LEAHY: People are going in and out. We're going to have to ask those at the door — there's a lot of noise in the hall that filters in — Mr. Mason bring the microphone close to you. Start the clock back up.

MASON: As I said, I wanted to give you a little bit about my background, because I want you to understand where I'm coming from, Senator, with respect to my comments. I grew up in Nashville, Tennessee, in north Nashville under very difficult circumstances. I lived in New York City ages 10 to 15, the last two years in South Ozone Park, New York, in Queens.

And it was while I was living there, I attended John Adams High School Annex. That area — South Ozone Park and Ozone Park, Queens — was experiencing a great deal of racial conflict at the time.

MASON: I and a friend of mine, after school one day, in '71, were jumped on, quite frankly, by a white gang from Ozone Park. We were beat very severely. There was an argument between the gang leader and some other member of the gang about whether I should be stabbed or just — and you have my big, blank, blank, blank butt sit home. And while that argument was going on, a police car came up. And they ran away. And I survived it.

I have seen racism in every respect and one can see it. I've been the victim of it professionally, academically. I've been the victim of it physically, in terms of being beat. I've been the victim of it verbally. I know it when I see it. I can smell it walking down the street.

I'm here for one reason and one reason alone, that I strongly disagree with the implications that John D. Ashcroft is a racist. I have spent a great deal of time with that man, and I will elaborate.

I graduated from the Washington University School of Law in 1983. And after that, I went to work for the Missouri attorney general's office. At that time John Ashcroft was the attorney general.

In my interview with him, we discussed our various backgrounds as young people. And I talked about my work in the political party, the Democratic political party.

In fact, Senator Kennedy, I mentioned to him an experience when you came to Vanderbilt in '76, and you spoke. And I was only about 100 feet in the cheering and screaming crowd. And it was quite an exceptional speech that you gave.

And he talked about his background, working as a Republican in the Republican Party as a young person. Frankly, I thought I wasn't going to be hired after that, but I was hired. And I began employment in that ocean of whiteness that was described as the Jefferson City Office of the Missouri Attorney General.

I found in that office nothing but support, warmth, commitment. I got good cases at all times. At no time was there every any suggestion that I was anything less than an appropriate person to represent the interest of the state of Missouri in all federal courts, all jurisdictions we went to, up to and including a case that I was able to work on for the U.S. Supreme Court that I had to give up the oral argument on, but I drafted the brief and the merits.

The senator and I formed a friendship based upon our mutual commitment to our lord and savior. We had lots of discussions about how I grew up, about how my grandmother raised me. And he developed an affinity for her; would often write her letters and send her copies of his albums — his gospel albums and he would sign things to her.

And as time went on, I begin to get a real feel for this man and where his heart is. When the subject of Martin Luther King Day came up, I was there. And I recall that he issued the executive order to establish the first King Day, rather than wait for the legislature to do it. Because, as you may recall, some of you, when the Congress passed the holiday, they passed it at a time when the Missouri legislature may not have been able to have the first holiday contemporaneously with it. So he passed a King holiday by executive order. He said, in doing so, he wanted his children to grow up in a state that observed someone like Martin Luther King.

I saw this commitment carry though, when I begin to work in the Republican Party. I worked heavily in both parties. I was a Jimmy Carter person and then worked for Bob Clement. And I went and did some work in the Republican Party, because of the friendship I developed with John Ashcroft.

And what that work was, was I wrote a diversity platform policy for the Missouri Republican Party. I took it into Sedalia and all the small towns of Missouri. I took it to the Missouri Republican Party Convention in '88. It passed unanimously, and it passed under Ashcroft's watch.

MASON: I noticed that it survived after I became a judge in both '92 and '96.

There was some discussion about black participation under the years of — when John Ashcroft was governor. While I was an attorney, after I left the Department of Corrections, I was their general counsel for a while, he appointed me to the stadium authority. It was the St. Louis Regional Athletic and Sports Complex Authority. It was our job to build a new stadium for our football team — $270 million project.

Most of the votes on that commission were controlled by John Ashcroft. We made a commitment very early on that that program was going to have substantial black participation at all levels. I chaired the committee that hired the large number of black lawyers that worked on that project, members of the Mound City Bar. I watched as accountants and people who sold stocks and securities and carpenters and people engaged in construction management who were of color, who were black, came into that project.

And that project came in on time, under budget, with the highest level of minority participation of any project of its size in Missouri's history. That was under John Ashcroft's watch. It's a monument of steel and stone that he is committed to participation. And no amount of rhetoric can dance around it. It is there. And I watched it happen. No one had to come to St. Louis and protest and stop the work in order for that to happen.

So I say all that to simply say this to you, Senator — and I will sum up because I see that red light. I would ask that this Senate avoid the politics of vengeance in making this decision, to forget how angry any of you may be about things that Senator Ashcroft may have done or said to people that you wanted to see appointed. And show America that you are prepared to engage in the politics of principle, that you will advise the president of the United States how the Justice Department should be run, what the priorities should be, how the laws should be enforced. And upon getting that advice, give your consent when you know that his nominee has committed to you that he will enforce all the laws of this country in equal measure, both spirit and letter.

Give the president your consent. And that's what I'm here to say today. Thank you.

LEAHY: Thank you, Judge. I appreciate your testimony.

Mr. Henderson, you are no stranger to this committee. You've appeared before us in many different issues. And we are always pleased to have you here. Go ahead, sir.

HENDERSON: Well, thank you, Chairman Leahy, Senator Hatch and members of the committee. I'm Wade Henderson, executive director of the Leadership Conference on Civil Rights.

HENDERSON: The Leadership Conference is the nation's oldest and most diverse coalition of civil and human rights organizations.

I appreciate the opportunity to present to you the views of the Leadership Conference regarding the nomination of former Senator John Ashcroft to be attorney general of the United States. The Leadership Conference on Civil Rights strenuously opposes the nomination of Senator Ashcroft to be attorney general.

I report this judgment to you with great sadness. We did not seek this conflict, and we do not relish it. We are mindful of the calls for bipartisan cooperation that accompanied the upcoming inauguration of President-elect Bush and we had looked forward to working with the new president and his attorney general on a wide array of civil rights challenges facing the nation. We still do.

However, the unexpected and disappointing selection of John Ashcroft compels our current position. It is hard to conceive of an attorney general nominee with more immoderate beliefs and a more abysmal civil rights record than former Senator Ashcroft. For over 30 years in public life, first in Missouri and then in Washington, John Ashcroft has been on the wrong side of virtually every issue of concern to the membership organizations of the Leadership Conference.

In reaching to the farthest degree of his political party to make this selection, President-elect Bush has displayed indifference to the sensitivities of African-Americans, Hispanic Americans, women, Americans with disabilities, gays and lesbians, the elderly and so many other Americans who are concerned about equal justice under law.

We acknowledge that a president is ordinarily entitled to deference in his choice of executive branch appointees, but the nomination of Senator Ashcroft to be attorney general overcomes that presumption for four reasons.

First, this appointment occurs in a political context unprecedented in our nation's history. The Ashcroft nomination was announced less than two weeks after the extraordinarily close presidential election ended in an abrupt and discomforting manner.

It is no secret that Americans were aggrieved by the circumstances of the election, especially in the decisive state of Florida. It is often said that Dr. Martin Luther King gave up his life so that others would have the right to vote, but as we have learned last November, that even in the year 2000, some citizens are less firmly enfranchised than others. Investigations by the NAACP, the United States Commission on Civil Rights and other groups have exposed widespread suppression of the African-American vote in Florida and disparities in election technology that systematically disadvantaged voters in less affluent neighborhoods.

In the wake of this harrowing election, we might have expected the new president to reach out to the civil and human rights community by selecting, yes, a conservative, but an attorney general with nonpartisan stature and an unquestioned commitment to well-established principles of equal protection under law.

And we might have expected the new administration to turn its attention immediately to the electoral reforms needed to assure Americans that in this democracy every vote counts.

Instead, with the wounds of Florida still raw, the country finds itself in the midst of a divisive debate over the confirmation of John Ashcroft. Responsibility for this new schism unfortunately does not rest with the civil rights community and those who oppose Senator Ashcroft.

Now, I do not here question in any way the legitimacy of the election results. But I must observe that the incoming president, we believe, and say so quite respectfully, lacks an electoral mandate to undertake the dramatic reconsideration of civil rights policy that this nomination implies.

Second in my list of four items, the deference due to an executive branch appointment does not end debate on this nomination, because of the unique role of the attorney general in our constitutional system. Now as the nation's chief law enforcement officer, the attorney general serves in a quasi-judicial function. He or she adjudicates legal disputes within the executive branch and renders advisory constitutional opinions upon which the president and Congress rely. He or she serves as the president's chief adviser on judicial nominations, which for all of us is an important responsibility, including nominations to the Supreme Court.

Finally, the attorney general represents the United States in the Supreme Court through the solicitor general, an officer sometimes referred to as the tenth justice because of the special reliance the justices place on the solicitor to advise the court on the state of the law.

Thus, the attorney general is not merely the president's agent; not just another member of the president's team. The Justice Department enjoys a tradition of independence and a unique constitutional standing that should lead the Senate to grant less deference to the president's choice for attorney general than the deference due to the president's other Cabinet selections.

Chairman Leahy and others have taken note of Senator Ashcroft's unyielding opposition to the nominations of Bill Lann Lee as assistant attorney general for civil rights, Henry Foster and David Satcher for surgeon general, James Hormel to be ambassador to Luxembourg. It might be argued that a senator who did not extend to President Clinton the deference due to executive branch appointments is not entitled to the benefits of such deference upon his own nomination.

HENDERSON: However, that is not our position. We disputed what has been called now the Ashcroft standard when it was applied to Mr. Lee, or Dr. Foster or Mr. Hormel. But, we will not apply it to Senator Ashcroft himself. Rather, we contend that the skepticism with which Senator Ashcroft unfairly approached these other nominations is, in fact, justified in the case of the attorney general.

Now, I notice that my red light is on and so I need to summarize, and I'll try to do so very briefly.

Let me say that there are numerous concerns that we have. Obviously, we have heard much testimony over the last two days from Senator Ashcroft himself, attesting to his willingness to enforce the law, to respect the great traditions of the Department of Justice and indeed we were pleased to hear that news and that information.

However, when you examine the record, the totality of the record that Senator Ashcroft has established, first as attorney general in St. Louis, the cases that have been mentioned here including the school desegregation case that has been so noted, and other concerns, we believe do, in fact, require us to oppose him as a compelling matter of principle. And we hope indeed that the Senate will reject his nomination.

Thank you very much.

LEAHY: Thank you, Mr. Henderson. I note that both you and Judge Mason went over just about exactly, almost the same thing.

HENDERSON: I'm sorry, Mr. Chairman.

LEAHY: No, it's a difficult thing. You both have extremely important things to say. I mention that more just for — because I can see the clock, and Senator Hatch can see the clock, and the rest cannot see the exact time. And, unfortunately, it's the realities of a nomination hearing like this and try to get so much in.

I suspect Pastor Rice would never want to have one of his sermons cut to five minutes, and I suspect your congregation wouldn't want you to. Pastor, go ahead.

RICE: I think that may be debatable itself, but we'll do our best. Mr. Chairman and Senator Hatch, my name is Pastor Booker T. Rice and I've been a pastor in St. Louis, Missouri, since 1979 and am presently with the New Horizon Seventh Day Christian Church.

I am here today at the request of the St. Louis Clergy Coalition, believed to be the largest and oldest organization of African-American ministers in the state of Missouri, and it's president, the Reverend Dr. Earl Nash Jr., to register our strong opposition to John Ashcroft's confirmation as attorney general of these United States of America.

Our opposition centers primarily around, but not limited to the following reasons. First, Mr. Ashcroft made false and inflammatory charges against Missouri Supreme Court Justice Ronnie White. Mr. Ashcroft labeled this distinguished jurist as pro-criminal, dangerous liberal, and the most anti-capital punishment judge on the Missouri court. These labels fly in the face of the fact that in no way reflects the record of this distinguished judge.

Second, we oppose Mr. Ashcroft because of his consistent opposition to restrictions on handgun ownership and consistent support of what we call packing, or better known as carrying concealed weapons.

Third, we oppose Mr. Ashcroft because of his insensitivity to the African-American community in general, and to the African-American community in Missouri, in particular.

We also oppose Mr. Ashcroft's extreme, unyielding position on a woman's right to choose.

It is my intention here today to expand on several of these points so that you may better understand why the appointment of John Ashcroft would be divisive and insulting to our community.

To characterize Judge White as pro-criminal makes a false assertion that the respected Judge is a supporter of criminal activities. We teach our children to set their sights on good role models, then pattern their life-long goals after those role models. Unfortunately, sometimes our children focus on what we perceive to be wrong role models, so we attempt to refocus or redirect them to those we believe the very best for our Missouri children. In our community, Judge White has become such a role model.

Imagine if you will our disappointment to read, hear or see in media that a United States senator has referred to this role model as pro-criminal. We know Justice White well and know that the facts do not in any way, shape, form or fashion resemble this distortion.

RICE: Mr. Ashcroft's careless remarks were very damaging to our community and to the work we do with our children.

We in the faith community believe that sensitivity to minorities is absolutely essential to our nation's chief law enforcement officer. Mr. Ashcroft, associating himself with and participating in organizations and institutions like the Southern Partisan Magazine and Bob Jones University, demonstrates insensitivity as well as poor judgment.

We felt deeply betrayed when Mr. Ashcroft's statement in the Southern Partisan Magazine and his acceptance of an honorary degree from Bob Jones University — two institutions notorious for their extreme racist statements and policies. Any affiliation with these kinds of institutions demonstrates complete disregard for our community.

Mr. Ashcroft's vocal and fervent opposition to the voluntary desegregation of Missouri schools was quality insensitivity. He was more concerned with the cost of desegregation than with the interests of African-American children in our community. He never apologized for segregation, he closed the door on negotiation and he strictly opposed desegregation.

We are deeply troubled by the strong stance that Mr. Ashcroft took while governor of Missouri to prevent independent voter registration drives in St. Louis. Opposing independent voter registration drives in St. Louis, which is about 53 percent African- American, were more than insensitive; it was offensive.

The senator's record opposing restrictions on handgun ownership and supporting the various concealed weapons shows a lack of common concern for the safety of our community. Too many of African-American youth die each year the victim of senseless handgun violence. We need less guns, not more guns. We need more control of handguns, not more handguns.

Finally, to the issue of a woman's right to choose, Mr. Ashcroft's position is apparently far, far to the right of even the most conservative views. Regarding a woman's right to choose, Mr. Ashcroft says no, under any circumstances, at any risk.

So as we examine Mr. Ashcroft's record, we must ask ourselves whether we can count on the Justice Department under John Ashcroft to be fair on civil rights, fair on discrimination, fair on racial profiling, fair on handguns, and fair on a woman's right to choose. right to choose.

RICE: As a minister of the Gospel and righteousness, speaking on behalf of myself and my colleagues, we have come too far and we've traveled too long to be turned back into the wilderness of indecision and cohesion based on race, color and national origin. We are not in the mood to have to retrace our steps, to be turned back into Egypt, where many have died in the struggle for civil rights and decent treatment.

As human beings, under our stars and stripes, shall we go back to the wilderness of repression, or shall we go forward into the full reality of the American dream?

LEAHY: Thank you, Pastor.

RICE: Your vote will tell the world the direction in which we, this great nation, will go.

LEAHY: Thank you, Pastor. And...

RICE: I'm not here to preach.

LEAHY: Oh, no, no. I — listen, I like preaching. I always worry when I'm at church and I don't hear a sermon that gets me going.

Mr. Woodson, Pastor Rice takes a different position than you did.

WOODSON: Yes.

LEAHY: Went a bit over. And I will give you the same amount of time. I want to be as fair as possible. I'll give you the same amount of time over. But again, please try to...

WOODSON: I will.

LEAHY: Thank you.

WOODSON: Thank you. I'm Robert L. Woodson, senior president and founder of the National Center for Neighborhood Enterprise, a national nonprofit that assists low-income neighborhood leaders in 39 states. And I'm here today to represent a federation of grassroots faith-based organizations that operate throughout the nation. But I'm also a veteran of the civil rights movement, having served and organized demonstrations in the '60s and five years with the National Urban League.

I'm here today, first of all, to voice strong support for Senator Ashcroft as attorney general.

Let me just destroy a myth. There are those who tend to believe that the black community speaks in one voice. We are not monolithic. A lot of people talk about diversity, except when it comes to an expression of independent political views. And so I challenge my colleagues who come here before you and saying, "The black community believes this, the black community wants this." We do not speak with a single voice.

It is prophetic irony that we meet at this time when four years ago a 12-year-old boy named Darryl Hall was snatched from a car on his way home just 20 minutes from here in an area called Simple City, Benning Terrace public housing. He was assassinated as a consequence of a conflict between two warring factions, the Avenue and the Circle. Fifty-five young black men died in a five-square-block area in two years as a consequence of this conflict.

The police couldn't make a difference. Social services couldn't make an impact. And — but the National Center, working with a faith- based organization, the Alliance of Concerned Men, went up into this area where people were huddled in their homes with refrigerators next to doors and brought these warring factions, the leadership, 16 of them, to my office downtown.

They were searched. They had bulletproof vests. We started with prayer. And we negotiated a settlement, the first truce. And as a consequence of this negotiation, we put these young people to work — thanks to the Housing Authority, David Gilmore — in rebuilding their community, taking out the graffiti.

And I'm pleased to report, after four years of these faith-based organizations working in Benning Terrace, one of the most dangerous areas of the city, we have not had a crew-related killing in four years as a consequence. as a consequence.

WOODSON: I have a young man here — stand up, Vernon — Vernon Wise , who is a young man whose heart has been transformed as a consequence.

Thank you.

Vernon, in that war, was shot 10 times at point-blank range with a .45. He lost three of his ribs, his spleen and a kidney. And Vernon spent time in prison, six cells down from his father. To all conventional wisdom, he is godless, hopeless and useless. But we reached out to him in a spirit of godly love, and now Vernon is trained as a telecommunications specialist, having gone to school, and is now a responsible person.

Vernon is one of 100,000 young people like him whose lives have been transformed through these faith-based organizations, Teen Challenge, Victory Temple, who exist all over this nation.

Senator John Ashcroft is the only person who, from the time he came into this body, reached out to us. He's on the board of Teen Challenge. He's raised money for them. He sponsored a charitable choice legislation that will stop the government from trying to close them down because they don't have trained professionals as drug counselors.

We have an 80 percent success rate of these faith-based organizations with a $60-a-day cost, when the conventional, therapeutically secular program cost $600 a day with a 6 to 10 percent success rate.

Senator Ashcroft has gone with us. He has fought with us. And this legislation would help us.

As a consequence, day before yesterday, 150 black and Hispanic transformed drug addicts got on buses from all over this nation and came here to support him. Fifty of them came from Victory Temple throughout the state of Texas, spent two days on a Greyhound bus at their own expense to come here to voice strong support for Senator Ashcroft.

And so let me say to you that a criminal personality is one who's very discerning, because you have to be in order to survive. They are not Democrats, they're not Republicans, they're not conservatives or liberal. But they know the real thing when they see it, and they came here to voice strong support for Senator Ashcroft.

Let me say to those of you who hear charges of racism. As a civil rights veteran, I reject this notion that we should soil the rich legacy of the civil rights movement by using it as a sword against those with whom we have political disagreements, and as a shield to protect those who happen to agree with us who are even criminals. are even criminals.

WOODSON: You can be a pedophile, you can be a sex-abuser and you can be a thief and still score an A on the NAACP's credit card as long as you hold the right political views.

And I have, as part of my testimony, an article that I published in the Wall Street Journal that gives names of people that have been supported for re-election to office who have committed these crimes.

And so I am saying to you: We hope that you will vote this man in knowing that the black community does not speak with a single voice, and that we strongly support Senator Ashcroft. I'll be pleased to take questions or elaborate further on the reasons why we support this very noble man.

I don't know why righteousness has to be an exemption for public service in America.

LEAHY: Thank you, Mr. Woodson. I appreciate that.

Mr. Taylor?

TAYLOR: Thank you, Mr. Chairman, Senator Hatch, members of the committee. I appreciate the opportunity to be here and present testimony.

I have been a civil rights lawyer for more than 45 years, beginning as a staff attorney for Thurgood Marshall at the NAACP Legal Defense Fund and later serving as general counsel and then staff director to the United States Commission on Civil Rights during the '60s.

By testimony — you know I'm well-affiliated, but my testimony today is solely on my own behalf.

I am the lead counsel for a class — not a single — a class of African-American and white students in the major school case in St. Louis. I have served as counsel for more than 20 years, and for much of that time John Ashcroft was a lawyer and defendant in the case, first as Missouri state attorney general and later as governor.

I have thought seriously since this nomination about whether Mr. Ashcroft's conduct in the St. Louis case was simply that of a lawyer vigorously defending the interests of the state or whether some of his actions went over the line of strong advocacy and reflect on his qualifications to serve as attorney general of the United States.

My conclusion is that the latter is the case. I believe that in his tenure as attorney general, Mr. Ashcroft used the court system to delay and obstruct the development and implementation of a desegegration settlement that was agreed to by all major parties except the state.

In so doing, he sought to prevent measures that were a major step toward racial reconciliation in an area where there had been much conflict and to thwart a remedy that ultimately proved to be a very important vehicle for educational progress. for educational progress.

TAYLOR: Worse yet, Mr. Ashcroft sought to exploit fears and misconceptions about desegregation as a means of gaining higher political office, thereby deepening racial divisions in the St. Louis area.

Taken together, I believe these actions raise the most serious questions about whether Mr. Ashcroft is prepared to serve all the people as attorney general and to enforce the civil rights laws fairly and impartially. I realize these are serious charges, but I am prepared to document them.

I assume my full statement will be in the record.

LEAHY: Of course.

TAYLOR: And I would like to concentrate the remainder of my time on statements that Mr. Ashcroft has made as a witness here. I will skip over statements that he made about whether the state was a party to the case at the time adjudications were made about its responsibility, and I will skip over his allegations that the state did nothing wrong. I think, Mr. Chairman, he may have taken some of those back in conversation with you.

I want to focus on the question of whether it's true, as Mr. Ashcroft claimed, that in all cases where the court made an order, "I followed the order both as attorney general and governor." And that, he did not repudiate. He, in fact, repeated. Nothing could be further from the truth.

One key period came in 1980, after the Court of Appeals asked the parties to explore the possibility of a voluntary integration remedy and Judge Meredith entered an order to begin the process. The state resisted the process at every turn.

In March of 1981, Judge Ungate , who had taken over the case, found that, quote, "the state, as a matter of deliberate policy, decided to defy the authority of this court," and that the state had resorted to, quote, "extraordinary machinations in an effort to resist dismantling the dual system."

These findings came after a lengthy recitation of numerous occasions on which the state had sought to delay and evade court orders. The court considered holding the state in contempt, but decided to make one more effort to issue an order that might result in state compliance. In doing so it said, quote, "To grant the state defendants a stay would permit the state to escape triumphantly from the consequences of its defiance of Judge Meredith's court orders. The court would be doing much less than its duty if state defendants were not held accountable for their actions." And I've included this court order as an appendix to my testimony.

The resistance of John Ashcroft became quite personal. As I detail in my testimony, in July 1981, the court appointed Susan Neuchattel , an employee of the state Department of Education, as interim director of the committee charged with developing a voluntary plan. a voluntary plan.

TAYLOR: The state objected strenuously to Ms. Neuchattel's appointment and filed formal objections with the court which were later rejected. At the same time, the state sought to pressure Ms. Neuchattel to resign from the assignment.

A contemporaneous log kept by Ms. Neuchattel reveals that a state education official relayed to her a threat from Mr. Ashcroft that if she chose to remain in the job, she would have to resign her state job, and if she did, she would, quote, "never receive another state appointment to a job from them."

Delaying tactics did not cease. Indeed, after our settlement with 22 suburban districts was reached, and the state appealed again and again, and it continued to resist the orders, even after its appeals were exhausted, the district court noted that the state had delayed implementation of the voluntary plan through opposition and repeated appeals and concluded that, "were it not for the state and its feckless appeals, perhaps none of us would be here at this time."

I'm almost done.

These tactics continued through Mr. Ashcroft's tenure as governor. Judge Limbaugh, Stephen Limbaugh, a Reagan appointee to the bench, referred to the conduct by the state that included "factual inaccuracies, statistical distortions, and insipid remarks" — that's a quote — regarding the court's handling of the case. He warned the state to desist in filing further motions grounded in rumor and unsubstantiated allegations of wrongdoing, and added that the state had even resorted in veiled threats toward the court to try to thwart implementation of the remedy.

LEAHY: Thank you.

TAYLOR: In summary...

LEAHY: Thank you, Mr. Taylor.

TAYLOR:

... contrary to Mr. Ashcroft's plan of review...

LEAHY: Mr. Taylor, we have to — everybody's had exactly the same amount of time at this point, both for and against Senator Ashcroft.

And, Ms. James, I understand from Senator Hatch that you had a conflict, you were supposed to be on a later panel, and to accommodate your schedule, we put you on this panel.

HATCH: I don't know. Kay, can you be here tomorrow, because if you can, it would be better to have you? In fact, why don't we — we've got...

LEAHY: I'm trying to accommodate everybody.

HATCH: ... why don't we get the last three witnesses, have them give their testimony, and then if you can't stay...

LEAHY: I think what we want to do is keep the thematic. I think we'll start questioning these. But, Ms. James, as I said to you, I'd be perfectly willing to have her come here.

Why don't you give your testimony, Ms. James?

JAMES: Thank you, Mr. Chairman.

And I do appreciate your accommodation.

I will try to speak at a little more rapid pace than would be my normal cadence to get it in, and I do understand that we're all operating under time constraints.

I want to thank you for the opportunity to testify on behalf of the nomination of John Ashcroft to be attorney general of the United States. My name, in fact, is Kay Coles James, and I'm a senior fellow at The Heritage Foundation.

I've known Senator Ashcroft for a number of years and in a variety of roles, beginning in 1991, as governor and as head of the National Governors Association, as a candidate, and for then also as a member of the United States Senate and as a presidential candidate and as a conservative activist. a conservative activist.

JAMES: Albert Einstein once said, "It is the duty of every citizen according to his best capacities to give validity to his convictions in public affairs." John Ashcroft's long career not only exemplifies the virtue of devoted public service, but it is a testament to his efforts to give validity to his convictions.

I've watched these hearings and thought that there was an important distinction that needs to be made. There is an enormous difference between being an advocate for a particular viewpoint or course of action, an activist, and in actually serving in government in an elected/appointed position. Each involves vastly different roles, different functions, and different goals and processes.

Many spend their entire lives as advocates and truly do not understand the very different role of governing or interpreting the law. Being a state attorney general or governor or federal Cabinet member is quite different from being an activist or a partisan. Many individuals are not capable of making the transition. However, by his testimony and by his record as governor and attorney general, John Ashcroft has demonstrated that he understands the difference between being an activist and being a public servant.

At the root of Senator Ashcroft's strong views is his religious faith, which he has said is the bedrock of the principles which shape his life. Unfortunately, that faith has been dragged into the public debate and has been used to call into question his fitness for public service.

This sentiment troubles me greatly as an American. Senator Ashcroft's opponents have veered perilously close to implying that person of strong religious beliefs cannot be trusted with this office, perhaps with any office, on the pure basis that such a person will be unable to resist the temptation to use the office to impose his religious beliefs on others.

This assertion troubles me for many reasons, none more so than I would have thought that we, as a nation, had long ago transcended such prejudices. John Kennedy faced similar questions and attacks about a feared conflict between his Catholic faith and the duties of public office and demonstrated that ancient prejudices of this type have no place in our democracy. Similarly, I was heartened by Senator Lieberman's many references during the recent presidential campaign to the importance of faith in his life and in the nation as whole, and his refusal to be silenced by those who believed that mere discussion of personal faith in public life is a danger to be suppressed. Indeed, Al Gore professed wondering, "What would Jesus do?" when confronted with a difficult situation.

Several members of the Senate have questioned whether or not a man of strong personal faith and conviction can set aside his personal beliefs and serve as the attorney general for all citizens. I would hope that this answer is obvious, not only from John Ashcroft's 25 years of remarkable service, but from the history of our nation as well.

To the contrary, I believe that John Ashcroft is precisely the type of individual we need in the public arena: a man of strong principles, of great integrity and intellect, who does not shirk from engaging in public discourse about the great issues of our day, and do so in a way that demonstrates not only his respect for others and divergent views, but an absolute and passionate commitment to the rule of law.

The system our founders designed, of course, is famous for its many checks and balances from which no public official is immune. Nevertheless, the charge is still made that these are insufficient to deal with a man of religious conviction. As such, a person cannot be trusted to faithfully execute the laws, especially those which may conflict with his deeply held belief.

I reject such religious profiling. On this matter, let me attempt to reassure John Ashcroft's opponents by enlisting the very thing they profess to fear most: his religious faith.

As with every other holder of public office, John Ashcroft must take an oath before assuming his responsibilities, and in this secular age when even a hint of religion in the public sphere can arouse fierce opposition, we keep the religious element in our oath precisely because we understand the importance to the individual.

John Ashcroft will raise his hand, if he is approved by the Senate and voted on to become the attorney general, and he will take an oath of office. And I think that it's great, I think that at this particular time in American history, it is so important to all of us to have people with character, with integrity, that when they raise their hand and they promise to defend and protect this great nation, we can count on them to do that.

Mr. Chairman, I have other comments and I will reserve them for the question-and-answer period and submit them for the record. Thank you, again, very much for your accommodation.

LEAHY: Thank you, Ms. James.

Again, so we'll know the schedule, we'll go to 6:00 and we'll then, unless someone is in the middle of an answer of course, we'll reconvene at 9:00 and we'll go without any breaks until we finish, if that's possible.

Ms. James, I hope you heard my opening statements on these that no member of this committee makes the charge of either racial or religious bias when it refers to Senator Ashcroft. And I also stated that we all know better. all know better.

LEAHY: I would like to clarify a misperception that has created some comments during the testimony of Senator Ashcroft, about the role of the late Mel Carnahan in the St. Louis desegregation case. Mr. Carnahan was the treasurer of the state of Missouri during the early 1980s. The state was ordered to make payments to fund desegregation. Under Missouri law, the treasurer can be held personally liable for making a payment without the warrant of the commissioner of administration of the state of Missouri.

When Mel Carnahan was asked to sign a multi-million dollar check, he did ask, on the state's behalf, to wait for the U.S. District Court to issue an order telling the commissioner of administration to issue the necessary warrant instructing him to do it. Once he had the legal authority, he went and issued a check.

So, I didn't want anybody to have the impression that the late Mel Carnahan, in any way, sought to slow down the progress of desegregation in Missouri.

Mr. Taylor, during his testimony, Senator Ashcroft criticized the Kansas City school desegregation litigation. He said it was not helping children. So, let me ask you something about the St. Louis desegregation case.

While then-Attorney General Ashcroft was litigating that case, he convinced the 8th Circuit that the state should not bear the cost of transferring students from one suburban district to the other. Now that part of the court's order covered only 300 students.

TAYLOR: Right.

LEAHY: There were just a few months remaining in the school year. I under stand that then- Attorney General Ashcroft moved immediately to cut off the state's payments for those students. It would have severely disrupted the education of those 300 children. If that's correct, is that something that would have helped the children? And how did the court react to that?

TAYLOR: You're entirely correct, Mr. Chairman. It was during the middle of the school year that then-Attorney General Ashcroft asked that the children be sent back to the schools that they had transferred from. And it would have been enormously disruptive. And the court recognized that it would not have furthered their education. And it was probably one of the more blatant of many actions which did not serve the interests of school children.

LEAHY: And I understand that he had called the voluntary desegregation plan, "An outrage against human decency, an outrage against the children of this state" — that was in the St. Louis Post- Dispatch, on 6-15-84. But then I understand that he made political use of the fact that he was nearly subject to contempt of court from a federal court, saying he had done everything in his power, legally, to fight the desegregation plan and to prove his point he said, "Ask Judge Ungate , who threatened me with contempt." me with contempt."

LEAHY: Is that the words of somebody who was supporting a plan of integration?

TAYLOR: It is not the words of somebody who was supporting a plan. These were statements he made during a Republican primary where he was running against Gene McNary, who was another opponent of desegregation, and they were in many respects echoing words that I heard during the 1950s and 1960s during an era of massive resistance.

I should add that Senator Ashcroft not only opposed this voluntary plan, but he also opposed other aspects of the court order that would require the state to pay money to improve the conditions of African-American children. He opposed funding for a school improvement plan in the central city and issued a press release about that.

And he never, never during the course of all the years that he was involved in the case, offered any kind of alternative program that he would have suggested would work better to provide educational opportunity for minority children.

LEAHY: Thank you.

Mr. Henderson, the civil rights community's reaction to this nomination is what you've already stated. How does that compare to previous nominations for attorney general, including nominations made by Republican presidents?

HENDERSON: Well, Mr. Chairman, I can assure you that many organizations within the civil rights community have never previously opposed an executive branch nominee for either the position of attorney general or for that matter others.

This is not something that is done regularly, very often, it is unusual. And what makes it especially disappointing in this instance is that many of us had hoped that with the new election the opportunity to bring the country together in the spirit of cooperation and bipartisanship would have been a positive gesture.

Certainly there have been others who have been opposed, you know, in the past, but as I said to you, this is not a general matter that we undertake, and we certainly don't undertake it lightly. undertake it likely.

HENDERSON: And we see this as an only option when issues of principle, such as those involved in the direction of the Department of Justice, are involved.

LEAHY: The red light is on, so I yield to Senator Hatch.

HATCH: Well, let me just say, I'm pleased to have all of you here and listen carefully to your testimony. I've been very interested in it, and that's all I'm going to say.

LEAHY: Then we will go to Senator Kennedy.

KENNEDY: Thank you very much. I thank the panel very much for all of your comments.

Mr. Taylor, one of the points of your enormously helpful testimony — and this is really the testimony. You were the attorney on this case. I hope, Mr. Chairman, that Senator Ashcroft will be given Mr. Taylor's testimony and be invited to make any comment on that, so that we have that record.

Because what you're basically saying, Mr. Ashcroft said initially the state wasn't involved, and you've indicated that it was involved. He indicated that he had complied with all the court orders. You've given us chapter and verse of the actions that were taken. And he would cast considerable question and doubt on that.

He had also indicated that he was just conforming to the law, trying to test the law, and doing it the way it should be done in the court of law. And your response on that is that the judges of those — that had the responsibility in the court found that these were frivolous, evidently. You use the — let me hear from you what the judges said when he kept repeating and repeating challenging the court orders that were ordering him to come up with a voluntary desegregation plan.

Wasn't he ordered in 1980, wasn't there a court order requiring Attorney General Ashcroft to submit a plan for desegregation within 60 days?

TAYLOR: That's right. And he did not submit the plan.

KENNEDY: Did he submit the plan?

TAYLOR: He did not submit the plan. And that, I think, was part of what led to this court order that I have quoted which said that the state had defied the authority of the court and had resorted to extraordinary machinations in order to resist dismantling the dual system.

KENNEDY: Now, this is how long after Brown v. Board of Education?

TAYLOR: This is 1981, so it's 26 years after Brown v. Board of Education.

KENNEDY: And spell out what's happening in the rest of the country. Is the rest of the country moving ahead in terms of trying to — in the complex, difficult and in many instances painful situations — I know it wasn't easy in my own city of Boston. But were they trying to move ahead in all parts of the country?

TAYLOR: Well, certainly. And there had been widespread desegregation throughout the South after the Supreme Court decided the Greene and the Swann cases in the '70s. in the '70s.

KENNEDY: Now, Missouri was one of the de jure states. It was covered by Brown v. Board of Education. And yet, in Missouri in 1980 and '81 you still had a condition of widespread segregation that the court felt it had to deal with.

Now, is it fair to say there was over 16 years, eight years when he's attorney general and eight years as governor, that this case wasn't settled?

TAYLOR: Well, it was settled over his objection while he was attorney general, and his appeals were rejected. And then the state continued, as Judge Limbaugh's order said, to try to obstruct implementation and not to fund the settlement that all the other parties had agreed to and that the court had entered as a consent decree and said was the law of the case.

KENNEDY: And how — did sometime this get settled? After — when Mel Carnahan became...

TAYLOR: Well, in the early '90s, the state moved under another attorney general to bring the case to a close, to achieve what was called unitary status. And we went to trial in 1996. And the court then appointed William Danforth as the settlement coordinator in the case. And Danforth had made his own study, found that this was a very valuable and workable plan, and he suggested and we then went — I joined him in going to the state legislature — and we got the legislature by a bipartisan vote and with Governor Carnahan's help to approve enough money to carry on the remedy. And then we entered into a new settlement, which is what you're referring to.

KENNEDY: OK. And how are the students doing? Very quickly because I've got to...

TAYLOR: The students are doing — most of the students are doing fairly well. The students who have transferred to the suburban school systems, I have to tell you, that contrary to what I think Mr. Ashcroft said, 75 percent of these kids are poor. They're free- and reduced-price-lunch eligible students. They are graduating high school at twice the rate of students in the city of St. Louis and students in other places. And they are going on to college at a very great rate. So they're doing well, and that program is working well.

KENNEDY: Finally, Pastor Rice, we want to thank you for your testimony and for your presentation. You're a man of deep faith, and obviously committed to your community and equality for all.

Yesterday, we heard Senator Ashcroft respond to question regarding his interview with Southern Partisan magazine and his speech at Bob Jones University. Both took place while he was representing Missouri in the United States Senate, a state with approximately 500,000 African-American residents. Would you tell the committee what impact those events had on African-Americans in your St. Louis community? Were they surprised or hurt? Did they care?

RICE: Yes, Senator Kennedy, we were past surprised, they were devastated, and they cared greatly. Not only did they care greatly, several petitions had been offered to the senator through several different grassroots organizations, asking him to return that honorary degree to the Bob Jones University, and, to this point, we've gotten no response. gotten no response.

RICE: And so it was hurting and devastating to many of our community.

Let me just say, for the record, that some say that we cannot speak in one voice. But I want to say that it was over 93 percent of the St. Louis and St. Louis area and Missouri of African-Americans that voted against John Ashcroft in this last November election. I think that's pretty close to a good voice.

LEAHY: Senator Specter?

SPECTER: Thank you.

Mr. Taylor, you have an extraordinary record for civil rights beyond any question. And I complement you for that.

TAYLOR: Thank you, Senator.

SPECTER: Former Senator Danforth testified yesterday that Senator Ashcroft, in litigation, was doing his job as a vigorous advocate. Would you have any suggestion for how a senator would evaluate the difference in judgments between you and Senator Danforth, without going into the voluminous records and practically relitigating the case, at least on an individual basis?

TAYLOR: Well, I think — I appreciate your remarks, Senator. I think the best way is to look at what the court said about then- Attorney General Ashcroft's performance. And I'm not sure you were here when I...

SPECTER: No, I was here. The follow-up question to that is did the court ever hold him in contempt?

TAYLOR: I think — no, but it said that it was prepared to hold him in contempt. And it said that he had defied the orders of the court and engaged in extraordinary machinations.

SPECTER: Did the court — I heard you say that before, and those are tough words. Did the court ever impose sanctions?

TAYLOR: No. What happened after that was the attorney general turned in a — his responsibility was to turn in a plan — or a voluntary plan. And the court looked at it and found it so sketchy and inadequate that it just decided to disregard it and go forward with the effort without the state's participation to bring about voluntary desegregation.

SPECTER: Mr. Taylor, I raised the question as to whether the court ever acted. They can act. They can hold you in contempt. They can impose sanctions.

TAYLOR: Oh, that's correct.

SPECTER: When I was district attorney, I was held in contempt of court one day for pressing a sentence on a narcotics pusher, Arnold Marks, who got a life sentence when he had several hundred thousand dollars worth of heroin. So, if a prosecuting attorney gets out of line in the eyes of the court, there are sanctions.

So I just wonder why, if it was all that bad, no sanctions were imposed as to Ashcroft.

TAYLOR: Well, I think, Senator — I mean, I cheerfully concede that he was never held in contempt. And as far as I know, he was never sanctioned under Rule 11. But the courts did evaluate his performance. And the record speaks for itself about how many times he sought to file motions to relitigate questions that were already settled and to do other things that the court said added up to a record of defiance.

And I don't know — you know, I think the — I don't think the sole standard is contempt. I would note that I'm not sure what kind of attention former Senator Danforth...

SPECTER: Mr. Taylor, let me pose it from a little different angle, because there's pretty limited time here. Missouri's a pretty moderate state. In my day here, they sent Eagleton and Danforth and Bond.

TAYLOR: Right.

SPECTER: And shortly before I came, they sent Symington. they sent Symington.

SPECTER: It's a state with a very moderate background. And Senator Ashcroft was elected fives times, twice as attorney general, twice as governor, then again as senator. If his conduct was so palpably outrageous, how, in a moderate state, could he be re-elected?

If a senator in Pennsylvania did what you say Ashcroft did, he couldn't be reelected and I think there are a lot of similarities between the states.

TAYLOR: Well, I might defer to my friend Reverend Rice to answer that question. But I would note that moderate as it may be, Missouri has a very long-term history of racial discrimination which it has been struggling to eliminate. And some of the seminal cases, back to Jones v. Mayer, and other cases of discrimination, came to the Supreme Court from the state of Missouri.

I can testify, Senator, because I've spent a lot of time out there, that race relations have been in a very difficult state.

SPECTER: I have one more question on the — the warning light is on for you, Mr. Woodson — you have heard what Mr. Taylor has had to say and at least in his view, and he's a man of substantial standing in the civil rights areas, and describes Senator Ashcroft's conduct in very extreme terms. You say the African-American community doesn't speak with a single voice. How would you justify Senator Ashcroft's conduct in light of what Mr. Taylor has said?

WOODSON: There has never been...

SPECTER: May the record show my red light just went on.

WOODSON: ... there has never been any single-mindedness on the issue of desegregation. Polls continually suggest, point out, that in the black community from the late '60s to forward, 50 to 60 percent of black Americans support desegregation in principle, but object to it in strategies in which it is carried out.

Senator Kennedy's own city of Boston, 1973, Judge Garrity , before he made his ruling, asked the community, Madapan and Jamaica Plain and all the grassroots people, people who suffering the problem, what they wanted. There were town meetings all over the city for about nine months.

The people in the community came back to Judge Garrity and said, "We want the neighborhood schools strengthened. We do not want busing." But the civil rights leaders told Judge Garrity , "Forget about the will of the majority of black Americans who said they didn't want busing. Order the buses to roll." Even though not a single civil rights leader had their children on those buses. They were in private schools.

And I recall, when I went there on behalf of the National Urban League to monitor this situation, talking to some of the white parents and some of the black parents. What we were doing, they said, is taking kids — black kids out of schools where there was a higher proportion going on to college and sending them into Southy, where one black — white parent said, "Bring your children into these schools, they'll graduate as dumb as our kids."

But there has always been tension. In Atlanta, Georgia, the NAACP leader there struck a deal called the Atlanta Plan. They negotiated to get a higher per capita expenditure on the black schools. And they were — he was fired because — so that there is no monolithic thinking on — in the black community on the issue of busing. issue of busing.

WOODSON: A large majority of blacks are opposed to forced busing for integration.

LEAHY: Thank you.

TAYLOR: Senator, I need 15 seconds at the risk of offending the committee. In St. Louis, today and recent years, 12,000 to 13,000 children get on buses every day to go from city to the suburban schools. Their parents have decided that they are getting a better education that way. So whatever statistics may be cited, those are the facts in St. Louis.

LEAHY: Senator Hatch and I said we will come back at 9:00, but I understand Senator Feingold just wanted to make a statement.

FEINGOLD: I know that there's no time for my round at this point, but I just want to — I don't want the day to end without briefly, of course, thanking all of the panel for coming, including Ms. James. But I can't let the day end without just commenting on this notion that somehow the opponents of Senator Ashcroft have engaged in religious profiling.

Now, I have decided to say some kind things about Mr. Ashcroft, including I made the mistake of saying I had a good working relationship with him. And as the result of that, we've had a lot of meetings with a lot of people I care a lot about, and both in private and public with every single group, every single time, not a single one has ever said anything about his religion other than to praise him, other than to admire.

This takes things to a level that I think is unacceptable. And as somebody that's, frankly, right in the middle of this, that is an unfair accusation with regard to the opponents of Senator Ashcroft.

LEAHY: Well, with that, as we stated — and I have found no objection with Senator Hatch on this — there is nobody on this committee on either side that has attributed the kind of racial things on Senator Ashcroft. And I agree with what the senator from Wisconsin said, and I really resent very much we raise any question that somehow — because I hold my religion very, very dear to me — and I resent very much any much any suggestion that if you question a person's politics, their positions, their steps, the things they might do as attorney general that somehow your attacking either their race or their religion. That has not happened from either the Republicans or Democrats in this committee. And I want that very, very clear.

HATCH: Well, let me just say this. I interpreted Ms. James as saying that some of the commentators and others have been bandying this around like it's reality. like it's reality.

HATCH: I haven't heard anybody on the committee or anybody in the Senate make any improper remarks.

SESSIONS: Mr. Chairman, on that subject, I think the tone of some of the remarks that have been repeated, like "deeply held beliefs, deeply held beliefs," and things of that nature have suggested that because he has a rich religious faith that somehow he can't work within a legal system and comply to the law. That's my sensitivity to it. I think it's been suggested.

LEAHY: You're hearing a trumpet that the rest of us don't hear.

SESSIONS: And it's all right for this witness to reply to it. That's all I will say.

LEAHY: You're hearing a trumpet the rest of us do not hear. Senator Hatch and I have both stated, made it very clear, that neither we heard from this panel anybody who ascribes either religious or racial bias to Senator Ashcroft, nor have we heard him say that about any of us.

With that, we'll stand in recess.

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