January 4, 2001
IN AMERICA
Fairness for Whom?
By BOB HERBERT

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We keep hearing that George W. Bush's choice for attorney general, John Ashcroft, is a man of honor, a stalwart when it comes to matters of principle and integrity. Former Senate colleagues are frequently quoted as saying that while they disagree with his ultra-conservative political views, they consider him to be a trustworthy, fair-minded individual.

Spare me. The allegedly upright Mr. Ashcroft revealed himself as a shameless and deliberately destructive liar in 1999 when, as the junior senator from Missouri, he launched a malicious attack against a genuinely honorable man, Ronnie White, who had been nominated by the president to a federal district court seat.

Justice White was a distinguished jurist and the first black member of the Missouri Supreme Court. Mr. Ashcroft, a right-wing zealot with a fondness for the old Confederacy, could not abide his elevation to the federal bench. But there were no legitimate reasons to oppose Justice White's confirmation by the Senate. So Mr. Ashcroft reached into the gutter and scooped up a few handfuls of calumny to throw at the nominee.

He declared that Justice White was soft on crime. Worse, he was "pro- criminal." The judge's record, according to Mr. Ashcroft, showed "a tremendous bent toward criminal activity." As for the death penalty, that all-important criminal justice barometer — well, in Mr. Ashcroft's view, the nominee was beyond the pale. He said that Ronnie White was the most anti-death-penalty judge on the State Supreme Court.

Listen closely: None of this was true.

But by the time Mr. Ashcroft finished painting his false portrait of Justice White, his Republican colleagues had fallen into line and were distributing a memo that described the nominee as "notorious among law enforcement officers in his home state of Missouri for his decisions favoring murderers, rapists, drug dealers and other heinous criminals."

This was a sick episode. Justice White was no friend of criminals. And a look at the record would have shown that even when it came to the death penalty he voted to uphold capital sentences in 70 percent of the cases that came before him. There were times when he voted (mostly with the majority) to reverse capital sentences because of procedural errors. But as my colleague Anthony Lewis pointed out last week, judges appointed by Mr. Ashcroft when he was governor of Missouri voted as often as Justice White — in some cases, more often — to reverse capital sentences.

But the damage was done. Mr. Ashcroft's unscrupulous, mean-spirited attack succeeded in derailing the nomination of a fine judge. The confirmation of Justice White was defeated by Republicans in a party- line vote. The Alliance for Justice, which monitors judicial selections, noted that it was the first time in almost half a century that the full Senate had voted down a district court nominee.

The Times, in an editorial, said the Republicans had reached "a new low" in the judicial confirmation process. The headline on the editorial was "A Sad Judicial Mugging."

So much for the fair-minded Mr. Ashcroft.

A Republican senator, who asked not to be identified, told me this week that he could not justify Mr. Ashcroft's treatment of Ronnie White, but that it would be wrong to suggest that the attack on his nomination was racially motivated.

That may or may not be so. It would be easier to believe if Mr. Ashcroft b>did not have such a dismal record on matters related to race. As Missouri's attorney general he was opposed to even a voluntary plan to desegregate schools in metropolitan St. Louis.

Just last year he accepted an honorary degree from Bob Jones University, a school that is notorious for its racial and religious intolerance. And a couple of years ago, Mr. Ashcroft gave a friendly interview to Southern Partisan magazine, praising it for helping to "set the record straight" about issues related to the Civil War.

Southern Partisan just happens to be a rabid neo-Confederate publication that ritually denounces Abraham Lincoln, Martin Luther King Jr. and other champions of freedom and tolerance in America.

This is the man George W. Bush has carefully chosen to be the highest law enforcement officer in the nation.

That silence that you hear is the sound of black Americans not celebrating.

-- Anonymous, January 06, 2001

Ms. Stewart, how many sites have you posted this to.

-- Anonymous, January 06, 2001

Tow. Why? Is that illegal?

Do you have any objections to or disagreements to the article?

-- Anonymous, January 06, 2001

None of the above. Just wanted you to correct the dropped bold tag.

-- Anonymous, January 06, 2001

Golly. So there are 'bad apples' in every administration.

Shall we now recite all the federal witnesses who fled the country to avoid prosecution, all the people who were indicted and convicted, etc. etc. etc. ad nauseum, who were Clinton cronies?

Politics engenders corruption. Get used to it. If that ever changes, let me know.

-- Anonymous, January 07, 2001

Cherri, this sounds all too familiar. White politicians doing everything they can to ruin a good, intelligent judge who happens to be black. About 10 years ago, there was a judge who was nominated for the United States Supreme Court named Clarence Thomas.

Certain Democrats did everything in their power to ruin this man's reputation and career, although they failed in blocking his appointment to the court, they did manage to make him look bad. Even now, approximately ten years later many liberals find it humorous to circulate photos on the internet in which they doctored to make it look like he is wearing clown paint while in his justice robe.

The biggest crime in this is they pretend to be the savior of minorities.

-- Anonymous, January 07, 2001

Help. Sorry. Dang, I wrote it in composer so I could spell check it and I checked and fixed (I thought) any open tags. I should post it somewhere to see if I have messed up.

What are the views of everyone on this nomination?

Personally, I'm don't see how Bush can say he's trying to unite the country and nominates Ashcroft who openly and blatently has shown his bigotry and has been exposed for lying to prevent the confirmation of minority nominees, which extended beyond the courts; he also worked with ultra conservative groups to help lead opposition to a number of Executive Branch nominations.

Bush isn't even in office yet and he is turning more people against him and isn't even smart enough to understand that.

We will loose all of the positive strides we have made in the past years.

-- Anonymous, January 07, 2001

Well, since you asked ... I don't really know enough about Ashcroft to form a strong opinion yet. I suspect that much of what has been written about him on BOTH sides is seasoned with a good does of political spin, but we'll see.

What I don't agree with is the way that this is being spun. (Spinned?) (Spanked?) Follow the logic being used by Ashcroft's opponents:

1 - Ashcroft opposed Judge White's nomination.

2 - Ashcroft says that it was because he disagreed with White's past history on the bench. But White's supporters (a.k.a. Ashcroft's opponents) maintain that White had a GOOD record on the bench.

3 - Since they say this, it must therefore be a fact.

4 - "Therefore," ergo et absurdum, Ashcroft's opponents conclude, "it only follows that Ashcroft *really* opposed White because he was black."

5 - "Therefore," (more of that absurdum stuffie here) "Ashcroft is a racist and should be denied the Attorney General's position."

With logic like this, who needs mind-altering drugs?

-- Anonymous, January 07, 2001

I'm also getting really tired of hearing the "dumb Bush" stuff.

The man has an undergraduate degree from Yale, and an MBA from Harvard.

Do any of the people who call him "dumb" have such qualifications?

-- Anonymous, January 07, 2001

=========================

Religious Right Made Big Push to Put Ashcroft in Justice Dept. http://www.nytimes.com/2001/01/07/politics/07ASHC.html

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-- Anonymous, January 07, 2001

Poole,

You and Flint (on another thread) seem to be defining the course of argument according to your own very narrow definitions of what is written. Perhaps Cherri's argument (as articlulated in her site) could better be phrased thusly:

1 - Ashcroft opposed Judge White's nomination.

2 - Ashcroft purports that his opposition was based upon White's past BAD history on the bench. Ashcroft gives no specifics or statistics to support his argument that White has been soft on criminals. White's supporters maintain that White had a GOOD record on the bench. They provide several reasons for their belief as well as statistical support.

3 - Resonable people conclude that that Aschcroft's unusupported assertions are baseless, and so choose to believe the better argument of White's supporters.

4 - Since Ashcroft's presented argument is vacuous, resonable people might also wonder what his REAL arguement might be. Noting that Ashcroft has supported organizations opposed to black advancement in the past, one might wonder if such prejudice might could maybe be a factor in Ashcroft's 'beliefs' concerning White's judicial performance. If true, this would be a very, very bad thing.

5 - Therefore, unless Ashcroft can provide a better rationale for his rejection of the nomination of White, perhaps we should not approve Ashcroft's nomination to the executive branch.

With logic like this, it would seem to me that Ashcroft's only defense is to provide support for his previously groundless assertions. Instead, Ashcroft's apologists continue to argue about the arguement. What absurdity.

Hey, this is your forum, and I do not necessarily disagree with your conclusion. I know you can provide a better support for Ashcroft than the one you provided above. I am writing only to encourage your efforts. Perhaps Ashcroft has provided a better arguement, but it was not reflected in the article above?

-- Anonymous, January 07, 2001

Chicken,

Your arguement seems to be that since we cannot weed out all bad politicians and their nominees, we should not oppose any nomination.

Of course, a similar argument is that there are also many unsolved murders, and murder has been going on for years and years. So it would seem to be useless to attempt to find and prosecute murderers.

Now, since few would agree the second argument, I can see no reason to agree with your first arguement. They are both very similar in that they both note the preponderance of condition most people find objectionable. They proceed to note how seldomly one can do anything about the objectionable conidition. Finally, they rpopose that since little can be done, that we should do nothing. This, by the way, is very similar to the speeder's argument upon being accosted by the state trooper: Why me?. Absurd, huh?

-- Anonymous, January 07, 2001

Pib,

You seem to imply that since you do not agree with the tactics used in a much earlier confirmation by a totally different set of individuals, that any complaint about the qualifications of your nominee today must be suspect. I do not follow that line of reason. Could you clarify please?

-- Anonymous, January 07, 2001

FedUp:

Are you kidding? It's now your position that because Ashcroft has not cited decisions he disliked, and his opponents have cited decisions they DO like, that therefore Ashcroft's position is indefensible?

This is, frankly, stupid. I personally don't know a single decision White made, nor a single decision Ashcroft didn't like. But I do know that you can take ANY decision made by ANYBODY, and you will find some that approve and some that don't. And *both* groups will point to the decisions they approve and call them "good", while the other group will call those same decisions "bad". What else is new?

When you speak of "statistical support" for a belief, I have to laugh. If I listed all White's decisions in two columns -- like and dislike -- do I have "statistical support" that White is good or bad? If you disagree with my categorizations, does that make YOUR position vacuous, or mine? You are claiming that a pure opinion is "baseless" unless examples are provided, in which case it becomes fact. Uh huh. May I suggest that it remains an opinion no matter what?

I have read opinions (whose quality I lack the information to judge) saying Ashcroft opposes abortion and favors the war on drugs. I consider these to be absolutely terrible positions, and if he really does hold them, I consider Ashcroft a poor choice for AG. But I don't need to abandon all logic to oppose him. You shouldn't either.

-- Anonymous, January 07, 2001

Fed Up,

You are making inferences to my post that do not reflect what I was trying to say. I was merely pointing out the hypocrisy of the left.

I am not particualry familiar with John Ashcroft and as so I would need more evidence to make a judgement about him. A few articles trying to demonize him written by the same authors who try to demonize every decision or appointment made by Bush carry very little weight in my mind.

-- Anonymous, January 07, 2001

Flint,

That is certainly not now my position. If Bob says that 'A' voted to promote 'B', and Bob does not like 'B', therefore Bob opposes the nomination of 'A', then what is the objection to demanding that Bob provide support for his assertion?

And I do not think that Aschcorft's position is indefensible. I just do not believe that you, Poole, Chicken, or Pib have done so. What part of the following arguement seems wrong?

>>Mr. Ashcroft ... said that Ronnie White was the most anti-death-penalty judge on the State Supreme Court.<<

In reality...

>>Justice White was no friend of criminals. And a look at the record would have shown that even when it came to the death penalty he voted to uphold capital sentences in 70 percent of the cases that came before him. There were times when he voted (mostly with the majority) to reverse capital sentences because of procedural errors. But ... judges appointed by Mr. Ashcroft when he was governor of Missouri voted as often as Justice White — in some cases, more often — to reverse capital sentences.<<

Now surely you too can provide SOME at least titularly objective analysis to support Ashroft's views, can't you?

-- Anonymous, January 07, 2001

Pibb,

The folks who opposed the Thomas nomination were not necessarily liberals. Those how oppose Aschroft today are not necessarly those who opposed the nomination of Thomas so many years ago. Further, those who oppose Aschroft today are not all trying to 'demonize' him. All those who write well resoned articles opposing Ashcroft are not opposed to all of Bush's nominees.

Your goal is to classify all of your enemies as liberals and hypocrits. Yet, many of your assumptions are suspect. Your response simply ignores the issues raised in the initial post on this thread and seeks to discredit/shoot the messenger. Absurd.

-- Anonymous, January 07, 2001

FedUp,

I said I didn't know enough about Ashcroft to form a strong opinion either way.

If there are statistics about how the other judges voted, then post them. That would be more useful than simply asserting that it's so.

But even if the charge is true, one of the biggest complaints from governors and presidents is that they'll carefully select a judge on the basis of ideology (BOTH ways -- lib or con), only to have that judge "turn the other way" once they get on the bench. :)

In this case, it may be that Ashcroft said (from bitter experience), "I've been burned, this time, I'm NOT gonna get burned."

That doesn't particularly thrill me; I don't necessarily like it. Politics, in general, is like sausage and all that. (You know the song.)

All I was saying was, this neither stuns nor upsets me terribly. Now, if you can find hard PROOF that Ashcroft is a racist, rather than spin (see my example here), then that means something. But a carefully-written hatchet job based on inference, supposition and "hmmmmmm" doesn't impress me.

EITHER way. Lib or con. Repub or Dem.

-- Anonymous, January 07, 2001

FedUp,

One other point, not related to Ashcroft's nomination, but to the selection of judges in general.

Do you realize -- does ANYONE realize yet -- that if there were limitations on judicial activism, this whole discussion would be a moot point?

The REAL shame is that we even have to WONDER where a judge stands on abortion, capital punishment, gun control, etc., etc., before we can consider them for the bench.

To me, that proves that there's something wrong with the system.

Liberals who have supported and defended that system for 20-30 years (because they are often able to advance their agenda through the courts when legislatures prove unresponsive) are simply finding out what the shoe feels like on the other foot now. I was warning my liberal friends decades ago that they were selling their birthrights for a bowl of oatmeal, that the day would come when the government would swing more conservative -- and then their hypocrisy would be exposed, because *THEY* would start complaining about "judicial activism."

The real answer is to rein in the judiciary.

-- Anonymous, January 07, 2001

This is good news - its a good sign to many that this time Bush has indeed named a true conservative to a cabinet post ;) Actually, Ashcroft is an honorable man, and considered as such by most, even many of his opponents. He is not a racist, but he is a victim of bigoted attacks - you see, to the extreme left, Ashcroft is "the enemy." Therefore truth and fact can be dispensed with in the ensuing character asassination.

yada yada yada, Ashcrof

-- Anonymous, January 07, 2001

Stephen:

You are piously asking the impossible. Politically charged cases do happen in law. These cases must be decided for one side or the other. Either decision is necessarily political if the case is political.

Perhaps you are arguing that appeals courts should not hear such cases, but confine themselves to considerations of whether rules of evidence were correctly followed, whether decisions were based on the proper law(s), whether courtroom procedures were correct, etc. But even so, this means the lower courts are making the political decisions without review. Is this better?

Maybe you are advocating that cases with political overtones simply not be accepted by courts? Simply *not try* cases concerning due process, freedom of speech, or the like? Really? Or are you saying that every case should be decided on the narrowest possible grounds, in the hopes of preventing generally applicable legal principles from emerging at all?

So just what do you mean by "judicial activism"?

-- Anonymous, January 07, 2001

Flint,

I had thought that the term was well-understood. "Judicial activism" refers to judges who make law from the bench (quite often from whole cloth). The Florida Supreme Court's first ruling in Florida was an example; they even admitted that they "fashioned" a remedy.

In such a case, there's always the clear feeling that the courts have overstepped their bounds. In elections, the remedy that has been used in the past is for the legislative branch (and its appointees and assigns) to oversee elections, as you yourself note elsewhere. The courts should only become involved in cases of outright fraud, malfeasance, etc. -- cases where someone has failed to obey the law.

In any case where a court makes a ruling that is not based on some precept of law as established by the legislature, that is, by ANY definition, "judicial activism."

Roe v Wade is another example. Few remember this in retrospect, but at the time, that decision was hammered from all quarters -- from the American Bar Association on down. Why? Because it was based on a so-called "right to privacy" that had never been granted by the Constitution or legislature. There are other examples.

When you define it more narrowly, you can see that the problem that you imagine is minimized. Of course there's no such thing as a "perfect" judiciary; that's not what I was talking about.

Also, just for the record, things like free speech cases are chances for the courts to apply the Bill of Rights. I have no problem with that, because they're basing their decisions on our Constitution and our laws.

Judicial activism goes in the conservative direction, too. A plain, unvarnished reading of the Bill of Rights would lead any reasonable person to believe that the Founders would have been appalled at the decision that permitted the police to search a vehicle just because they were suspicious.

If you need a definition, use this one: "Judicial activism" refers to crafting law from the bench. Liberals are the biggest abusers primarily because they've been unable to advance their agenda through the legislative branch; thus, they've moved to the courts (and fight, tooth and nail, to keep those courts favorable to their philosophy).

Reparations for the decendants of former slaves is a perfect final example, and illustrates how far we've fallen. Such reparations should be voted "yay" or "nay" by the legislature; that's how it's been done in the past. So why is it in the courts? Because those in favor know that if they have any chance at all, that's where it will be.

For that matter, that's why Gore went to court instead of the legislature down in Florida.

-- Anonymous, January 07, 2001

Stephen:

While I agree with you, I think even you have to recognize that there is a fine line between determining what a law means, and making new law. When you have very different interpretations of meaning, then those who hold what becomes the minority interpretation legitimately feel the majority has made new law, more often than not.

However, I think the courts intrude into legislative territory all to often. Roe v. Wade should not have been necessary, because state legislatures should have determined the legality of abortion (as indeed they were beforehand. I remember when New York was the only state where they were legal, and were happily attracting clients from all over the western hemisphere.) And had the New York law been challenged, I'd much rather have seen it decided on grounds of church and state separation. But that's a footnote.

We both are claiming Gore went to the courts because (1) he'd lost the count and the recount; (2) all of the responsible officials were of the opposing party, so he couldn't use proper channels of redress.

-- Anonymous, January 07, 2001

Fed Up,
I don't pretend to know the political views of everyone who opposed Thomas's nomination, but many of them were vocal liberals. Many who oppose Aschroft today were the same who opposed Thomas (definately not all, but a good percentage). Again not every opponent of Ashcroft is trying to demonize him, but what in your mind are they exactly trying to do to him? How do you know what my goal is? Do you have some kind of mind reading ability? If so, I suggest you go back to the Psychic Friends Network Training School for remedial lessons. I am simply pointing out that many of the people who are quick to paint Ashcroft as a racist were suspiciously silent during the Thomas inquisition. Yes, there are exceptions. There are liberal columnists who are quite fair on issues like this, as there are conservative columnists who write good columns criticizing their fellow conservatives for missing the point on other issues. I am not talking about the exceptions, I am talking about the collective whole.

I am not trying to excuse Ashcroft's behavior if what is being said about him is true, but I will need more evidence presented to me before I blindly accept these accusations.

-- Anonymous, January 07, 2001

Flint,

I noticed you haven't yet addressed the point Fed Up made as follows:

What part of the following arguement seems wrong?

>>Mr. Ashcroft ... said that Ronnie White was the most anti-death- penalty judge on the State Supreme Court.<<

In reality...

>>Justice White was no friend of criminals. And a look at the record would have shown that even when it came to the death penalty he voted to uphold capital sentences in 70 percent of the cases that came before him. There were times when he voted (mostly with the majority) to reverse capital sentences because of procedural errors. But ... judges appointed by Mr. Ashcroft when he was governor of Missouri voted as often as Justice White — in some cases, more often — to reverse capital sentences.<<

Now surely you too can provide SOME at least titularly objective analysis to support Ashroft's views, can't you?

It seems to me that White's supporters were providing some statistical rebuttal to Ashcroft charges. I'd be interested in seeing your thoughts on this.

Regards

JC

-- Anonymous, January 07, 2001

Flint,

Roe v. Wade ... But that's a footnote.

A very valid footnote. I essentially agree.

After I posted that, by the way, I thought, "aw, sheesh, this'll just start the old pro-/anti-abortion debate again." That wasn't my reason for using it as an example.

My argument, rather, is that if abortion is to be legalized, it should be done by an act of legislature, and not by judicial fiat. THAT's all I was saying. Whether you (or anyone else here) is pro- or anti-abortion is beside that one specific point.

Johnny,

I don't think such statistics are as critical or illuminating as you think. Imagine, for example, two different drivers: one speeds daily, the other only speeds once a week. Either is liable to get a traffic citation, and -- here's the point! -- we'd want to question whether EITHER was a good choice to drive a school bus filled with our children. See?

That's analogous to what I said about Ashcroft. He was taking White's record, as-it-was, and using it to decide whether White was the right candidate for that position. He decided, "no." I have no doubt that there were candidates both more liberal AND more conservative than White.

You can certainly disagree with Ashcroft's decision. But it is something worse than a stretch to ASSUME (that's the operative word) that he's a "racist" as a result.

-- Anonymous, January 07, 2001

Stephen

Zut alors....you're answering quickly tonight.

I should have said in my post that I wasn't buying the "Ashcroft must be a racist" argument; rather, I was saying that Ashcroft's contention that White was "the most anti-death- penalty judge on the State Supreme Court" appeared to be contradicted by evidence provided by White's supporters. As such, there may be legitimate concern that Ashcroft has reached his decision on the basis of flawed information.

*I* would *not* take a leap in logic and suggest that racism played a part in the decision.

Regards

JC

-- Anonymous, January 07, 2001

Johnny,

OK, fair enough. I'm glad to hear it.

Of course, I still have to nitpick. Ashcroft's specific contention was that White was the most anti-death penalty on the state supreme court.

Bob Herbert engages in *precisely* the type of spin that I exposed at that other link. He obfuscates with a little deliberate disingenuity: he states that Ashcroft had appointed other judges who turned out to have records similar to (or even worse/greater than) White's. What he conveniently fails to note is that a district court judge ain't the same as a state supreme court justice.

The higher you go up the judicial ladder, the more closely you'll be scrutinized. Herbert's essay is spin, plain and simple.

-- Anonymous, January 08, 2001

People For the American Way has prepared this report in connection with the nomination of John D. Ashcroft to be Attorney General of the United States. It is extremely rare for People For the American Way to oppose the confirmation of a nominee for an Executive Branch position. But the extraordinary nature of John Ashcroft’s record as an elected official – including demonstrated indifference and hostility toward individual rights and equal opportunity – compels us to oppose his confirmation as Attorney General.

The Attorney General is not simply the lawyer for the President. Rather, the Attorney General is also the lawyer for all the people of this country, a person with the power to affect, for good or ill, the lives of all Americans. As head of the Department of Justice, the Attorney General makes decisions that determine how justice is defined and pursued by the Executive Branch. Among other things, the Attorney General is the principal enforcer of our nation’s civil rights laws and is entrusted with guaranteeing justice for all Americans. The Attorney General is also responsible for the enforcement of immigration laws and for federal laws protecting women’s reproductive freedom and the environment. In choosing which cases the Justice Department will take up, the Attorney General plays a critical role in determining whether our nation will keep its promise to all Americans of equal justice under the law or will abandon this goal in favor of a narrow, extremist, and exclusionary vision of justice.

More than any other Cabinet member, the Attorney General exerts critically important influence beyond the Executive Branch itself. Through the Justice Department's role in recommending nominees to the federal courts, the Attorney General plays a major part in deciding what kinds of judges will preside over our nation's federal courts. The screening and selection process carried out in the Justice Department determines whether the men and women who come before the Senate for confirmation to the third branch of government are fair-minded individuals committed to equal justice under law for all Americans or are ideologues chosen to advance a specific social and legal agenda.

The Attorney General reviews proposed legislation and renders advice as to whether particular proposals violate the Constitution as interpreted by the Supreme Court. Through the Office of the Solicitor General, the Attorney General also represents the United States before the Supreme Court, where he or she is in a position to advocate on behalf of or in opposition to individual rights and freedoms and other matters of importance in the lives of all Americans.

For these reasons, the person chosen to be the Attorney General of the United States must be someone who has demonstrated the highest respect for the fundamental principles of equality under the law. The person confirmed to this critically important position must be committed to seeing to it that every American enjoys equal protection under the law and must be willing to pledge the power and resources at the Attorney General’s command to the pursuit of equal justice.

And because of the Attorney General’s unique powers and responsibilities as the nation’s chief lawyer and prosecutor, he or she must also be a person beyond reproach, a person of integrity and judgment, and one with a temperament fit for this special position.

For these reasons, a high standard should be applied to the consideration of a nominee for Attorney General. The special nature of the Office of Attorney General should be of principal concern to the Senate Judiciary Committee as it considers Mr. Ashcroft’s nomination. As former Solicitor General Archibald Cox stated fifteen years ago:

Respect for the law, the fairness with which law is administered, is the foundation of a free society. The individual who becomes Attorney General can do more by his past record than his conduct in office to strengthen or erode confidence in the fairness, impartiality, integrity, freedom from taint of personal influence, in the administration of law.

Confirmation of Edwin Meese III: Hearings before the Sen. Comm. on the Judiciary, 99^th Cong., 1^st Sess. 450 (1985).

In this report, we present an overview of John Ashcroft’s voting record during his term in the United States Senate and of various actions and positions that he has taken during that time with respect to matters that bear upon his fitness to serve as the Attorney General of the United States. We do not attempt to address in this report the entirety of Ashcroft’s record as a public official, which spans more than two decades, and includes not only his recent term in the Senate but also his service first as Attorney General and then as Governor of Missouri. An analysis of Ashcroft’s record as a state official in Missouri will follow in a subsequent report.

In the discussion below, we focus principally on examples from John Ashcroft’s Senate record where he has deviated substantially from the mainstream on a number of issues critical to the consideration of a nominee for Attorney General, including civil and constitutional rights and individual freedoms, and on the principles of fairness, equal justice, judgement, and integrity. As demonstrated below, Ashcroft’s record is one of rigidity and extremism. His views place him at the far right of the Republican Party, making him one of the most ultra conservative members of Congress and putting him out of step with the vast majority of Americans.

This report discusses at some length Senator Ashcroft’s extensive role in opposing various minority candidates for judicial and Executive Branch positions. We do not contend that John Ashcroft is a racist, as some have claimed about him. Rather, the issue here is John Ashcroft’s failure to demonstrate a commitment to fairness and equal opportunity, a commitment that should be considered a prerequisite for one who aspires to be the Attorney General. The issue is also John Ashcroft’s lack of sensitivity and concern about the rights of women and minorities, as well as his ideological rigidity, all qualities that are antithetical to the ability to serve all Americans as our Attorney General.

In sum, Ashcroft’s record in the Senate is not one that will, in the words of Archibald Cox, "strengthen confidence" in the fairness of the administration of law. To the contrary, it is a record of insensitivity toward those who most need the protections of the law, a record that leads inexorably to the conclusion that John Ashcroft should not be confirmed as Attorney General of the United States.

 

 

II. ASHCROFT’S SENATE RECORD: VOTES AND POSITIONS DEMONSTRATING HIS IDEOLOGICAL EXTREMISM AND LACK OF COMMITMENT TO EQUAL JUSTICE FOR ALL

 

A. Voting Record Ratings

 

John Ashcroft’s voting record in the Senate firmly establishes his far right credentials. The National Journal wrote that, "Ashcroft’s record in 1997 and 1998 put him in a tie as the most-conservative Senator, according to the National Journal’s rankings." According to that analysis, Senator Ashcroft was even farther to the right than Jesse Helms. Ratings by both right-wing and progressive interest groups confirm Senator Ashcroft’s far right record and underscore the extreme nature and ideological rigidity of Ashcroft’s views.

In particular, ratings by the Christian Coalition, the National Right to Life Committee, and the American Conservative Union show that throughout his six years in the United States Senate, John Ashcroft has been a consistent and reliable vote for right-wing legislative priorities. The Christian Coalition has given him a perfect 100% rating in every year but one since 1995 (with the ratings for that one year, 1999, unavailable on the organization’s web site). The National Right to Life Committee rated Ashcroft 93% in 1995 and 100% every year since then. (Ratings for 2000 are not yet available on the group’s web site.) Ashcroft also received 100% ratings from the American Conservative Union for 1996 through 1999, and 91% in 1995 and 96% for 2000.

On the progressive side, opinion is similarly unanimous about Ashcroft’s voting record. The NAACP graded his performance as "F" for each of the last three Congresses. The Leadership Conference on Civil Rights gave him 10% ratings for the 104^th and 105^th Congresses. On the scorecards of the National Abortion and Reproductive Rights Action League ("NARAL"), Senator Ashcroft’s votes earned him a solid 0% every year since 1995. (Ratings are not yet available for 2000.) The League of Conservation Voters gave Ashcroft an 11% in 1995-96 and 0% since then. On the AFL-CIO’s ratings on issues affecting working people and their families, Ashcroft earned a meager 14% in 1996 and 0% every year since then. And Handgun Control reports that Ashcroft has opposed every single bill on their priority list during his six years in the Senate.

John Ashcroft takes pride in his ultra-conservatism. According to Ashcroft, "there are two things you find in the middle of the road. A moderate and a dead skunk, and I don’t want to be either one of those." St. Louis Post-Dispatch (Aug. 25, 1998). In the same year he made that statement, Ashcroft also publicly repudiated the "deceptions" of pragmatism, conciliation, and compromise, and strongly advocated "unabashed conservatism." Human Events (April 10, 1998).

 

B. Specific Votes and Positions

 

Senator Ashcroft has taken many positions and voted in many ways with which People For the American Way disagrees. For example, we have opposed Senator Ashcroft’s attempts to promote religious school vouchers and so-called "charitable choice." However, the particular positions and votes selected for discussion here reflect more than policy disagreements. Instead, they underscore the extreme nature of Ashcroft’s views and actions, and his lack of qualities critical for an Attorney General.

1. Ashcroft’s sabotaging of Judge Ronnie White’s nomination. In 1997, President Clinton nominated Judge Ronnie White of the Missouri Supreme Court to be a United States District Court Judge. Judge White, who had been appointed by Governor Mel Carnahan to the Missouri Court of Appeals and then to the state Supreme Court, was the first African-American to sit on the Missouri Supreme Court, and was unquestionably qualified to be a federal judge. Indeed, at the hearings on his nomination in May 1998, Judge White was introduced to the Senate Judiciary Committee by Republican Senator Christopher Bond of Missouri, who told the Committee:

It is a real pleasure to be able to join with my distinguished colleague, the senior member of Missouri’s congressional delegation, Congressman Clay, to urge that this committee act favorably upon and send to the floor for confirmation the nomination of Judge Ronnie White. . . My close friends and colleagues in the practice of law who have had the pleasure of working with Judge White over several years have assured me that he is a man of the highest integrity and honor. Judge White understands that the role of a Federal district judge is to interpret the law, not make the law. I have always believed that one of the most important duties I have as a Senator is to evaluate carefully the nominees for the Federal judiciary. I believe Judge White has the necessary qualifications and character traits which are required for this most important job.

Confirmation Hearings on Federal Appointments: Hearings before the Sen. Comm. on the Judiciary, 105^th Cong., 2d Sess. 7-8 (1998).

Congressman Clay followed Senator Bond’s introduction with his own remarks, noting that Senator Ashcroft had also confirmed the high regard accorded to Judge White by his colleagues on the Missouri Supreme Court, all of whom were Ashcroft appointees:

I might cite one incident that attests to the kind of relationship that Judge White has with many, and that is with a member of this committee – Senator Ashcroft. When I recommended Judge White to the President for nomination and the President nominated him, one of the first people that I conferred with was Senator Ashcroft. Senator Ashcroft then said he would get in touch with me at a later date.

At a later date, he told me that he had appointed six of the seven members to the Missouri Supreme Court. Ronnie White was the only one he had not appointed. He said he had canvassed the other six, the ones that he appointed, and they all spoke very highly of Ronnie White and suggested that he would make an outstanding Federal judge. So I think that is the kind of person we need on the Federal bench.

Id. at 9. Senator Ashcroft, a member of the Judiciary Committee, was present during this Committee hearing and did not contradict Congressman Clay’s report of their conversation in any respect.

Nonetheless, more than two years elapsed between the time that Judge White was nominated and the date when the Senate finally voted on his nomination. Press reports indicated that Senator Ashcroft was responsible for blocking any vote on Judge White’s nomination for this extraordinarily long period of time by placing a hold on the nomination. See, e.g., "Confirm Ronnie White," St. Louis Post-Dispatch (Aug. 11, 1999) (stating that Senator Ashcroft had at that point held Judge White’s nomination in limbo for 776 days). In fact, the St. Louis federal district court seat to which Judge White had been nominated had been vacant so long that the vacancy was declared a judicial emergency by the Administrative Office of the U.S. Federal Courts. Judge White was one of a number of minority and female judicial nominees whose nominations were significantly delayed by the Senate, and for periods of time longer than the delays experienced by President Clinton’s white male nominees. (See also discussion in B. 2., below.)

When Judge White’s nomination finally was brought to the Senate floor in October 1999, Senator Ashcroft spearheaded a successful party-line fight to defeat White’s confirmation, the first time in twelve years (since the vote on Robert Bork) that the full Senate had voted to reject a nominee to the federal bench. In opposing Judge White’s confirmation, Senator Ashcroft used the harshest of language to portray Judge White as soft on crime, stating:

[u]pon [Judge White’s] nomination I began to undertake a review of his opinions. . . I believe Judge White’s opinions have been and, if confirmed, his opinions on the Federal bench will continue to be procriminal and activist, with a slant toward criminals and defendants against prosecutors. . . [H]e will use his lifetime appointment to push law in a procriminal direction, consistent with his own personal political agenda. . .

145 Cong. Rec. S11872 (daily ed. Oct. 4, 1999) (statement of Sen. Ashcroft).

Senator Ashcroft then went on to characterize Judge White as someone with "a serious bias against a willingness to impose the death penalty." Referring specifically to Judge White’s decisions in death penalty cases, Senator Ashcroft represented to his senatorial colleagues that:

Judge White has been more liberal on the death penalty during his tenure than any other judge on the Missouri Supreme Court. He has dissented in death penalty cases more than any other judge during his tenure. He has written or joined in three times as many dissents in death penalty cases, and apparently it is unimportant how gruesome or egregious the facts or how clear the evidence of guilt.

Id. Two months earlier, in a commentary written in the St. Louis Post-Dispatch, Senator Ashcroft had launched this line of attack, proclaiming that Judge White was "the most anti-death penalty judge on the Missouri Supreme Court" and that his record was "outside the court’s mainstream." St. Louis Post-Dispatch (Aug. 18, 1999).

In fact, in the press and in the Senate, Ashcroft had grossly distorted and misrepresented Judge White’s decisions in death penalty cases. Judge White had actually voted to uphold the imposition of the death penalty far more often than he had voted to reverse it. According to published reports, Judge White voted to affirm death sentences in 41 out of 59 capital cases that had come before the Missouri Supreme Court during his tenure. Moreover, also according to these reports, in the majority of the cases in which Judge White had voted not to impose the death penalty, he did so unanimously with the other members of the state Supreme Court – including judges who had been appointed by John Ashcroft when he served as the state’s governor. And in two of the six cases in which Judge White wrote the decision for the Court upholding the imposition of the death penalty, he did so over the dissent of judges who had been appointed by Governor Ashcroft. Indeed, three judges appointed by Ashcroft had voted to reverse death penalty sentences a greater percentage of the time than had Judge White.

In his statements on the Senate floor mischaracterizing Judge White as insufficiently committed to the death penalty, Senator Ashcroft specifically pointed to two – of only three – cases in which Judge White was the sole dissenter on the state Supreme Court with respect to imposing the death penalty. In relying specifically on these two cases, not only did Senator Ashcroft fail to provide his colleagues with pertinent information about Judge White’s dissents that would have dispelled the false light in which Ashcroft had placed Judge White, but he also created an ambush. At no time during the Senate’s hearings on Judge White, when Senator Ashcroft questioned him in person in May 1998, or later when Ashcroft submitted written questions to him, did John Ashcroft ever ask Judge White about these two decisions or raise any concern about why he had dissented. Thus, not only was Judge White never given an opportunity by Senator Ashcroft to explain himself, a gross unfairness in and of itself, he was also not given an opportunity to correct Senator Ashcroft’s misleading use of these dissents.

A fair reading of the dissents in these two cases plainly reveals that what was at issue was not Judge White’s willingness to impose the death penalty, but whether, in one case, the defendant’s right to effective assistance of counsel had been violated, and, in the other, whether the trial judge was biased and should have recused himself. Indeed, in the first case, in which the defendant had raised an insanity defense, Judge White expressly stated, "This is a very hard case. If Mr. Johnson [the defendant] was in control of his faculties when he went on this murderous rampage, then he assuredly deserves the death sentence he was given. But the question of what Mr. Johnson’s mental status was on that night is not susceptible of easy answers." Missouri v. Johnson, 968 S.W.2d 123, 138 (Mo. 1998) (White, J., dissenting, emphasis added).

On the Senate floor, Ashcroft also told his colleagues that law enforcement officials in Missouri had "decided to call our attention to Judge White’s record in the criminal law." 145 Cong. Rec. S11872 (daily ed. Oct. 4, 1999) (statement of Sen. Ashcroft). However, after the Senate rejected Judge White’s confirmation, the press reported that Senator Ashcroft had solicited opposition to Judge White from law enforcement officials. See "Law Enforcement’s Opposition to White Was Courted by Ashcroft; Police Group’s President Says it Rejected Senator’s Request to Oppose Judge," St. Louis Post-Dispatch (Oct. 8, 1999). According to this article:

…the president of one of the state’s biggest police groups, the Missouri Police Chiefs Association, said it had declined a request by Ashcroft’s office to oppose White. . . Carl Wolf, president of the association, said his group received a letter from Ashcroft’s office detailing White’s decisions in death penalty cases. One of Ashcroft’s staffers also called him and asked if the group would work against the nomination. "I just told them we had never taken that type of position before," Wolf said. As a policy, the association does not get involved in judicial nominations, he said. Wolf added that he knows White personally and has never thought of him as "pro-criminal" – a label Ashcroft applied to White’s record. "I really have a hard time seeing that he’s against law enforcement," Wolf said. "I’ve always known him to be an upright, fine individual and his voting record speaks for itself," Wolf said.

Id. In fact, a number of Missouri law enforcement officials and organizations, including the Missouri State Lodge of the Fraternal Order of Police, wrote in support of Judge White.

Senator Ashcroft not only misrepresented Judge White’s willingness to affirm death sentences by blatantly mischaracterizing his decisions, he also ignored the fact that Senator Hatch had specifically questioned Judge White on this very issue during the May 1998 confirmation hearings before the Senate Judiciary Committee, for which Ashcroft was present. At that time, Senator Hatch asked Judge White whether he had "any legal or moral beliefs which would inhibit or prevent [him] from imposing or upholding a death sentence in any criminal case that might come before [him] as a Federal judge." White’s answer was unequivocal:

Absolutely not, Mr. Chairman. The U.S. Supreme Court has ruled in several cases that the death penalty is constitutional, it doesn’t violate the Eighth Amendment, and as a Supreme Court judge, I have written opinions affirming death sentences and have concurred in many others.

Confirmation Hearings on Federal Appointments: Hearings before the Sen. Comm. on the Judiciary, 105^th Cong., 2d Sess. 16 (1998). When Judge White’s nomination finally reached the Senate floor, Ashcroft prevailed on every one of his Republican colleagues to vote against confirmation.

Observers at the time noted a number of possible reasons why Senator Ashcroft had so misrepresented Judge White’s record and orchestrated what one newspaper called "a sad judicial mugging." The New York Times (Oct. 8, 1999). Some noted that Senator Ashcroft was facing a highly-contested reelection battle against then-Governor Mel Carnahan (who had appointed Judge White) in which Ashcroft intended to make strong support for the death penalty an important issue. (Gov. Carnahan, at the urging of the Pope, had commuted a death sentence given to a convicted murderer.) It was also reported that Ronnie White’s pro-choice beliefs concerning women’s reproductive freedom, views with which Senator Ashcroft strongly disagreed, may have played a role as well. Indeed, anti-choice forces in Missouri blamed Ronnie White, when he was a state legislator, for effectively killing a bill that would have prohibited all abortions in the state except those necessary to save the woman’s life. Others have charged that Ashcroft’s conduct reflected clear insensitivity to African Americans.

We cannot judge the reasons why Senator Ashcroft did what he did. What Senator Ashcroft’s actions on the Ronnie White nomination demonstrated, however, was a clear lack of integrity. Ashcroft engaged in a reprehensible and irresponsible distortion of a nominee’s record, he misled the Senate about that record, and he prevented a qualified nominee from being confirmed as a federal judge.

-- Anonymous, January 08, 2001

.

-- Anonymous, January 08, 2001

Cherri:

It's one thing to oppose a nominee because you disagree with his political positions. This is entirely legitimate. It's something a bit different to claim that anyone who disagrees with your opinions is incompetent or unqualified for duty. It's a joke that the far-left People for the American Way would set themselves up as arbiters of "the qualities critical for the Attorney General."

Mind you, I consider the recommendations of the People for the American Way very valuable. They (along with some others like the NAACP, NOW, Jesse Jackson, etc.) perform a valuable service, since I don't have the time to evaluate everyone's voting record in any detail. If these people hate someone, I know we've found a worthy candidate! But even the *support* of the People for the American Way doesn't necessarily mean the candidate is unqualified. [grin].

I've spent the last 8 years watching the government go marching off in the wrong direction, filling prisons faster than we can build them with nonviolent violaters of legislated morality. The fact that Ashcroft wants to perpetuate this insanity is the worst thing about him, AND the most racially oriented (because blacks are WAY overrepresented among the drug war victims). I think this is where Ashcroft needs to be grilled, rather than this silly Ronnie White smokescreen. But it won't happen...

-- Anonymous, January 08, 2001

Flint, The perosn who wrote it, and the website that posts it does not NEGATE the facts that exist. Can you discuss the facts please?

Be realistic, no GOP or Bush website is going to bring up the negitive aspects of any of the Bush nominees.

-- Anonymous, January 08, 2001

Cherri:

I don't personally consider Ashcroft to be a particularly good nominee. I agree with him on affirmative action, gun control, reduction of government, and quite a few other subjects. I quite vigorously disagree with him on abortion, religion in the schools, and the war on drugs, where he might have a baleful influence. On balance, I could wish Bush had picked someone more to my taste, but I think Ashcroft's positions are certainly preferable to Reno's.

But these are all my opinions. What you consider a "fact" is that Ashcroft's Senate voting record is "bad". But this is only your opinion. Ashcroft is fully qualified to be Attorney General. What facts do you wish to discuss?

-- Anonymous, January 08, 2001

Flint,

What you consider a "fact" is that Ashcroft's Senate voting record is "bad". I do not know myself yet if I consider Ashcroft's record "bad". If the "spin" about his alleged bigotry that I have been sucking up is true, then I will consider it bad. I need to view more, unbiased information and facts before I come to a firm conclusion, unlike my first reaction which was to assume what I read was true. Guess I did need to sit back with an open mind and start doing what I chastised "doomers" for not doing.

-- Anonymous, January 09, 2001