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HEADLINE: PANEL II/DAY TWO OF A HEARING OF THE SENATE JUDICIARY COMMITTEE TO CONSIDER THE NOMINATION OF JOHN ASHCROFT TO BE U.S. ATTORNEY GENERAL
 
CHAIRED BY: SENATOR PATRICK LEAHY (D-VT)
 
LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.

WITNESSES: EDWARD D. "CHIP" ROBERTSON, ESQ., FORMER JUSTICE, MISSOURI STATE SUPREME COURT; HARRIET WOODS, FORMER MISSOURI LIEUTENANT GOVERNOR; JERRY HUNTER, ESQ. FORMER MISSOURI LABOR SECRETARY; FRANK SUSMAN, ESQ., GALLOP, JOHNSON, AND NEUMAN, L.C.; KATE MICHELMAN, PRESIDENT, NARAL; GLORIA FELDT, PRESIDENT, PLANNED PARENTHOOD FEDERATION OF AMERICA; MARCIA GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN'S LAW CENTER; COLLEEN CAMPBELL, MEMBER OF MEMORY OF VICTIMS EVERYWHERE
 


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

Now that Senator Hatch is here, we will begin.

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

What I'm going to do is have -- each witness will have five minutes, and because there are so many, we are going to have to run the clock pretty strictly. Your whole statement, of course, will be part of the record.

It's been my experience if there's something you really want us to remember the most, you may want to emphasize that, but I will leave it any way you want to go. And so, Judge Robertson, we'll start with you and move from my right to the left.

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

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

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

MR. ROBERTSON: Yes, sir.

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

On March 4th, 1801, Thomas Jefferson addressed the people of the United States in his first inaugural address. He acknowledged the rancor that marked his election, but he stated, "Every difference of opinion is not a difference of principle." If press accounts are accurate, it appears that some of the members of the Senate may disagree with John Ashcroft's opinions. I trust, however, that none of you disagrees with the principle upon which he will found every decision he makes as attorney general of the United States, should you confirm him. That principle requires that the rule of law established by Congress and interpreted by courts will prevail, must prevail, as he carries out his duties as attorney general.

As attorney general of Missouri, John Ashcroft issued official opinions concluding, for example, that evangelical religious materials could not be distributed at public school buildings in Missouri. And you have heard a number of those opinions discussed previously in this hearing, and I will not list them for you now. If one believes Senator Ashcroft's critics, each of these opinions should have reached a different result, but they did not, for one overriding reason: Then-Attorney General Ashcroft let settled law control the directives and advice he gave Missouri government.

Now, I do not intend to take much more of the committee's time with these prepared remarks, as there are so many of us and I'm sure you have questions for all of us. I have known John Ashcroft for nearly a quarter of a century. If we could boil him down to one single essence, we would find a man for whom his word is both a symbol and a revelation of his deepest values. This means one thing to me; one thing to which nearly a quarter of a century has failed to provide a single contrary example -- when John Ashcroft gives his word, he will do what he says, period.

Those who are with me at this table have opinions, some of them, that differ from Senator Ashcroft's opinions.

But they, like the members of this committee, of the Senate and every American, can count on John Ashcroft's word. When he tells you that he will follow the settled law, he will follow the law.

Thank you, Mr. Chairman.

SEN. LEAHY: Thank you very much.

Ms. Woods.

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

And I have to say: Which John Ashcroft? I've listened to these hearings and heard him say that he will conform to Roe v. Wade, that he will support mandatory trigger locks. You understand that in Missouri, over and over, he has shown an absolute dedication to the overturn of Roe v. Wade, campaigned for concealed weapons. I will try to sample in my very brief remarks a number of cases where I feel that he has pushed particular agenda or ideological values rather than administer justice in an even-handed manner.

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

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

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

You know, I respect Governor Ashcroft, Senator Ashcroft. He has lifted his hand and said he swears to uphold the law. He swore to uphold the law in Missouri also. In 1985, when both of us were sworn in, one as governor and one as lieutenant governor -- the "odd couple," of course, I'm a Democrat, he's a Republican -- he said to me, "I could find useful things for you to do, but in return, you will have to give up the authority to serve as the governor in my absence when I leave the state." I was really stunned.

I said, "Well, why? I mean, I certainly would do nothing to in any way misuse that power.

I want to cooperate with you. I have every motive to cooperate with you. I can't unilaterally give up a constitutional duty."

He said, "That's not the way I read the law." And he left the state without notifying me or the secretary of state.

He didn't at that time contest this in the courts. He didn't say, "Let's get this law changed." Ultimately, I was -- it was ridiculous. And the only recourse I had was clearly to go to the press, and I said so. Finally, they slipped a note under my door that he was leaving the state, and we had no further problem.

But he raised the same thing with my successor, Mel Carnahan, poisoning the atmosphere with him, ultimately did go to court. The court said his authority did extend when he was outside the state, but the judge added, "He really ought to work with the lieutenant governor to better serve the people of the state."

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

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

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

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

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

SEN. LEAHY: Thank you.

Mr. Hunter?

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

Based upon my personal knowledge and relationship with Senator Ashcroft, I believe he is eminently qualified to hold the position of attorney general.

I have known Senator Ashcroft since 1983, and I've had the pleasure to work with him as an advisor, a subordinate during the period I was director of the Missouri Department of Labor from 1986 to 1989, and as a friend and supporter. During that period that I've known Senator Ashcroft, I have always known him to be a person of the upmost integrity and an individual who is concerned about others.

Contrary to statements which you have just recently heard and will hear from others during this hearing, I do not believe Senator Ashcroft is insensitive to minorities in this society. And I think the record which has been laid out by Senator Ashcroft clearly contradicts these allegations. Like President-elect George W. Bush, Senator Ashcroft followed a policy of affirmative access and inclusiveness during his service to the state of Missouri as attorney general, his two terms as governor, and his one term in the United States Senate.

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

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

During his tenure as governor, John Ashcroft appointed a record number of minorities to state boards and commissions, including many boards and commissions which had previously had no minority representation. Governor Ashcroft also appointed eight African- Americans to state court judgeships during his tenure, including the first African-American to serve on a state appellate court in the state of Missouri, and the first African-American to serve as a state court judge in St. Louis County.

Governor Ashcroft did not stop with these appointments. He approved the appointment of the first African-Americans to serve as administrative law judges for the Missouri division of worker's compensation in St. Louis City, St. Louis County, and Kansas City. When Governor Ashcroft's term ended in 1993 -- January of 1993, he had appointed more African-Americans to state court judgeships than any previous governor in the history of the state of Missouri.

Governor Ashcroft was also bipartisan in his appointment of state court judges. He appointed Republicans, Democrats, and independents. One of Governor Ashcroft's black appointees in St. Louis was appointed, not withstanding the fact that he was not a Republican and that he was on a panel with a well-known white Republican.

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

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

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

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

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

Mr. Chairman, I see my time is up. I would like to make one final point, and would be happy to respond to any questions.

When Governor Ashcroft sought reelection in the state of Missouri as governor during 1988, he was endorsed by the Kansas City Call newspaper, which is a well-respected black weekly newspaper in the state of Missouri. And in that election, he received over 64 percent of the vote in his reelection campaign for governor.

Thank you, Mr. Chairman. And I'd be happy to respond to any questions.

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

SEN. HATCH: I'm hoping by late tonight to have this hearing over. And there's no reason why --

SEN. LEAHY: I think they closed down the -- I think they told all federal employees to go home at 2:00 this afternoon --

SEN. HATCH: (Laughs.)

SEN. LEAHY: -- because President-elect Bush and Ricky Martin are having a party down on the Mall and --

SEN. HATCH: We know how hard you work, Senator. We know you're willing to do whatever it takes.

SEN. LEAHY: Well I don't want to interfere -- I don't want to interfere with the president-elect and Ricky Martin's show. (Laughter.)

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

SEN. LEAHY: You think the show here is better than Ricky?

SEN. HATCH: This is a good show.

SEN. LEAHY: All right.

Mr. Susman, please go ahead, sir.

MR. SUSMAN: If you'd be kind enough to reset the clock, I'll stay within my time today. (Laughter.)

SEN. LEAHY: I know, I'm looking at the clock myself and I'm saying -- there we go. Well wait, it's almost there. You got it. Go.

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

Up-front, let me state I strongly oppose his nomination. I am a practicing attorney in Missouri with a long history of handling matters involving health care, particularly as they relate to women, contraception and abortion. Although a minor part of my law practice, I've been counsel in at least six cases involving these issues before the United States Supreme Court, three additional cases before the Missouri Supreme Court, as well as numerous other cases in courts throughout the United States.

Domestically, the Cabinet position of attorney general is the most powerful of any. The attorney general has the ability to shape the future of the federal judiciary through his or her involvement in judicial appointments to the 641 District Court positions, the 179 Circuit Courts of Appeal positions, and the nine Supreme Court positions.

The attorney general does much more than merely enforce the laws of this land. The attorney general is able to influence legislation merely by the persuasive powers of the office. It is myopic to believe that the office possesses no discretion in interpreting the laws of the land, particularly on legal issues neither previously nor clearly decided by the Supreme Court. The attorney general has the discretion to select which laws are to be given priority in enforcement through control of the purse and the assignment of other resources.

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

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

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

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

This opinion by the nominee provided the impetus for the state's Board of Registration for the Healing Arts to threaten the plaintiff physicians and nurses with a show-cause order as to why criminal charges should not be brought against them. The implementation of the nominee's opinion would have eliminated the cost-effective and readily available delivery of these essential services to indigent women, who often utilized county health departments as their primary health care provider, and would have shut and bolted the door to all poor women who relied upon these services as their only means to control their fertility. In Sermchief, a unanimous Missouri Supreme Court struck down the nominee's interpretation of the Nursing Practice Act.

During the nominee's term as governor of Missouri, family planning funding was limited to the lowest amount necessary to achieve matching federal Medicaid funds. And during this same period of time, teenage pregnancies in Missouri increased. The nominee vigorously opposed the Snowe-(Reed/Reid ?) amendment to the Federal Health Benefits Plan seeking to extend federal heath care coverage to include contraceptives. The nominee co-sponsored unsuccessful congressional legislation seeking to impose upon all Americans a congressional finding that life begins at conception, which would have eliminated the availability of many common forms of contraception, and legislation requiring parental consent for minors to receive contraception.

Throughout his political career and at every opportunity, the nominee has sought to limit access to and require parental consent for not only abortion but for contraception as well, although parental consent had never been suggested as a prerequisite for a minor to engage in sexual intercourse or to bear children. Although the nominee has continually sought to give these decisional rights of a minor to her parents, he has never suggested that these same parents have any financial or other responsibility for the minor's child once born.

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

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

Thank you.

SEN. LEAHY: Ms. Michelman, we welcome you to this committee -- you've been a witness here before -- and appreciate having you here today.

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

SEN. LEAHY: Pull the microphone just a little bit closer, would you, please. (Technical adjustments.)

MS. MICHELMAN: Sorry.

A decade ago I spoke here of my experience as a struggling young mother of three, again pregnant by the husband who had abandoned my daughters and me, as a woman faced -- forced to endure humiliating interrogation by a hospital committee, confronted with laws that made abortion a crime.

Since then I have met thousands and thousands of women who depend on this nation's right to choose, and the survivors of those women who died because they did not have that right.

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

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

I will discuss our opposition to this nomination in the context of three dominant themes.

First, senators must choose between John Ashcroft's unmitigated quarter-century attack on a woman's right to choose and his promise to this committee to preserve Roe versus Wade, the basis of the right he has long sought to undermine.

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

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

John Ashcroft's record includes the following -- and I will note some of those that have already been mentioned -- he cosponsored the Human Life Act, which would have virtually outlawed all abortions and common contraceptive methods like birth control pills. In this support for banning abortion procedures, he has called preserving the woman's life "rhetorical nonsense."

As attorney general, he tried to stop nurses from providing contraceptive services, an effort the state Supreme Court unanimously rejected.

As governor, he supported a bill outlawing abortion for 18 different reasons, almost all abortions, and women would have had to have signed an affidavit revealing the most intimate details of their personal lives.

As attorney general, Ashcroft testified in favor of federal legislation declaring that life begins at conception, which would have allowed states to prosecute abortion as murder.

Throughout his career, Ashcroft has worked to undermine, not respect, existing law. Senator Ashcroft's goal has been to criminalize abortion, even in the cases of incest and rape, and to limit the availability of contraceptives. He has used every single tool of public office to attack women's reproductive rights.

Merely committing not to roll back our constitutional freedoms is not enough. To be confirmed, his record and his goals should be consistent with this commitment. Senator Ashcroft's convenient conversion on the road to confirmation is simply implausible. His conversion has been timely, but it will be too late for millions of American women if he does not live up to his surprising promise to protect their right to choose.

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

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

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

SEN. LEAHY: Thank you.

MS. MICHELMAN: Thank you.

SEN. LEAHY: Thank you, Ms. Michelman. And Ms. Feldt, you are one not unaccustomed to testifying before the Congress. Good to have you here.

MS. FELDT: Thank you very much, Chairman Leahy and Senator Hatch and all senators. I'm really honored to be here, particularly to follow upon the testimony of Ronnie White; I must say very relevant to what we're talking about now.

I also have a little confession to make. Yesterday Mr. Ashcroft disclosed to you that he and I -- yes, I was the one who had talked with him about armadillos and skunks. The real point of that exchange, however, was to say that I agree with him that it is very important to act upon your convictions. And he and I have both spent over 25 years of our lives acting upon our convictions. But can you just wash away 25 years of passionate activism? I know I certainly could not. I want to believe Mr. Ashcroft when he says he accepts Roe vs. Wade as the law of the land. But his career stands in sharp contrast to his statements this week. Since past behavior is the best predictor of future performance, I am very worried.

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

This belief defies medical science.

As a U.S. senator, you know that he sponsored the most extreme version of the anti-choice Human Life Amendment which would have written his belief into the Constitution. As governor of Mississippi (sic), he signed the legislation declaring his belief to be the policy of the state, and he opposed contraceptive coverage for federal employees because some of the contraceptives would have acted, or could have acted, after fertilization. Indeed, he never voted to support family planning at all.

The fundamental right to choose declared in Roe stands on the earlier Griswold versus Connecticut decision which protected the right to contraception. Both are based on the fundamental human and civil right to privacy in making childbearing decisions. Mr. Ashcroft's crusade would not only outlaw abortion, but most common methods of contraception as well. And unless Mr. Ashcroft is prepared to walk away from the keystone of his entire political career, then as attorney general, he would be in a unique position to impose his definition of personhood as fertilization. This could not only strike at the right to abortion, but also contraception. An anti-choice president, plus John Ashcroft, plus a Supreme Court they help shape, equals a recipe for disaster.

You have asked whether Mr. Ashcroft would enforce the Freedom of Access to Clinic Entrances Act. He says that he will enforce the law and that is necessary, but not sufficient. It takes leadership and prevention, and here's the difference: In the late '80s, hordes of demonstrators repeatedly stepped over the lines of legal protest at our centers. I personally received a long series of telephone death threats, both at home and at work. Our doctors were stalked day and night. Our health centers received numerous bomb threats. I went to the chief of police and he said, "Close the clinic."

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

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

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

I want to close by talking to you not as senators, but as men and women -- none of the women are here today, I'm sorry to say -- who care deeply about the nation and its people. This nomination represents something bigger than presidential discretion, bigger than senatorial courtesy, bigger even than your personal friendships.

This is about a fundamental human and civil right: to determine whether you believe women have the moral authority to run their own lives, to make their own childbearing decision. So I ask you to listen to your inner voices and think about what you will say to your daughters and your granddaughters. How will you explain to future generations if John Ashcroft uses the power of his office to deny the women you know and love reproductive choices: the right to our own lives.

Thank you very much.

SEN. LEAHY: Thank you, Ms. Feldt.

Ms. Greenberger, good to have you here again, and please go ahead.

MS. GREENBERGER: Thank you --

SEN. LEAHY: And we're having some difficulties with some of the sound system, so if you'd bring the microphone close to you.

MS. GREENBERGER: Thank you. Thank you, Senator Leahy and other members of this committee, for the invitation to testify today. I'm co-president of the National Women's Law Center, which since 1972 has been in the forefront of virtually every major effort to secure women's legal rights. My testimony today is presented on behalf of the Center as well as the National Partnership for Women and Families, which since its founding in 1971 as the Women's Legal Defense Fund has also been a preeminent advocate for women's legal rights in Washington and nationally. And we are here today to oppose the nomination of John Ashcroft to serve as attorney general of the United States, and we do so because the attorney general of the United States very simply is responsible for protecting and enforcing the fundamental principles and laws that have advanced and safeguarded women's progress for more than three decades and because, as has been stated here, Senator Ashcroft's record demonstrates that entrusting him with this heavy responsibility would put these precious gains for women at far too great a risk to ask them to bear.

Mr. Ashcroft has testified that he would accept responsibility to execute the laws as they are and not as he might wish them to be. But we have not been reassured by his testimony. The extreme positions that have been a driving and overriding theme of his long public career have repeatedly led him to misread what the laws are, and then to zealously use his public offices to advance his mistaken views. His assurances in his testimony were too often general in nature, subject to many caveats, and must be considered within the context of the way in which he did discharge his obligations when he was also obligated to enforce and also interpret the laws. I want to mention briefly some of the areas beyond choice and abortion and contraception so important and what has been discussed so far this morning to raise some other issues as well.

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

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

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

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

He twice used his line-item veto in 1991, and again the following year, to seek out and strike even small sums of money for domestic violence programs, prompting a local domestic violence advocate to denounce the action as reprehensible in light of the fact that the programs in question were literally struggling to stay afloat. One of the most critical responsibilities of an AG in administering the Department of Justice program dealing with violence against women is determining the financial resources that will be committed to that very program.

As a senator, Mr. Ashcroft's record on issues important to women has been no better, and my written testimony explains why. I will mention two points briefly. First, as senator, he repeated blocked the confirmation of highly qualified women to the federal bench. Not one of us sitting here today could have failed but be moved by the extraordinary testimony of Judge Ronnie White. And I want to point out how struck I was by the important notes of criticism that were articulated by members of this committee about the process that was followed in the Judge Ronnie White case. There have been similar problems with other women nominees. Senator Specter, you identified those problems this morning.

Senator Ashcroft would be screening and evaluating judges, a major responsibility. He would be responsible for setting up and implementing the process he would use to screen and refer judges to the president. He would be doing this behind closed doors. This Senate has seen how he has operated in the open. To give him that vast authority, as I say, behind closed doors, is unthinkable.

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

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

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

SEN. LEAHY: Thank you --

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

SEN. LEAHY: Thank you, Ms. Greenberger.

MS. GREENBERGER: Thank you.

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

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

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

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

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

Today I've been asked to represent and speak for many people, including my friend and great crime fighter John Walsh, of "America's Most Wanted." He badly wanted to be here today. I've been requested to represent and speak on behalf of 12 major California crime victims' organizations and the hundreds of thousands of crime victims that those organizations represent. We strongly and unequivocally support the confirmation of John Ashcroft as the next attorney general of the United States of America.

Throughout his long career, he has shown great heart, and he has worked to lessen the devastation which victims are forced to endure.

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

The murder of our son was brutal, and our treatment at the hands of the justice system was inhumane, cruel, and barbaric.

Nothing in our life had prepared us for such injustice.

Long ago, John Ashcroft realized the need for balanced justice and has worked toward that end. He understands that victims in our country must no longer suffer the indignities that many have been forced to endure. John Ashcroft stands for fairness, law, order and justice. He stands for balancing the rights of the accused with the rights of the victims and the law-abiding. He stands for constitutional rights for crime victims.

Throughout this great country, we need unselfish courage. We need John Ashcroft's strong conviction in the fight against crime, and we need him to further victims' rights. Victims, God bless them, deserve notice, just like the criminal; the right to be present and the right to be heard at critical stages of their case. They deserve respect and concern for their safety. They deserve a speedy trial every bit as much as the defendant. Victims deserve, at the very least, equal rights to the criminal.

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

John Ashcroft will fight for legal rights and true remedies for crime victims. We urge you to support John Ashcroft's confirmation. No one knows who is going to be a victim and, if you will permit me, my words today are dedicated -- (pause) -- to the memory of Brian Campbell -- (weeps) -- my 17-year-old grandson who died nine days ago. And it's really tough to be here, and if this wasn't so darn important, I wouldn't be here. But together, Brian and I believed as long as we have courage, today will be beautiful. As long as we have memories, yesterday will remain. As long as we have purpose, tomorrow will improve.

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

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

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

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

At the request of Senator Hatch, and then following the normal courtesy -- he has advised me that Congressman Watts and Congressman Hulshof -- I know Congressman Hulshof is here because I spoke to him earlier -- are here. This was the panel that was going to be on last night, and because of some miscommunication, some members were able to be here, some weren't. And now, because of further miscommunication, the last member of that panel is not here.

But following the normal tradition in the Congress of putting members of Congress on if they're available, I'm going to ask the panel here to step down, rejoin us after lunch, and we'll go back to your questions.

And we'll call Congressman Watts and Congressman Hulshof now. When Congressman Clyburn gets back, we'll have him. But we will go back to the questions after lunch.

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

(Break to change panels.)

SEN. LEAHY: If we could have order in the committee room to make it possible for the witnesses to be heard. (Sounds gavel.) We have a very large room here, and I know there are some people who are leaving, some people who are coming in, and we have two distinguished members of the House of Representatives who deserve to be heard. We will hear first from Congressman Watts, who is a member of the Republican leadership, majority leadership in the House of Representatives. As I mentioned earlier, I received a letter from Congressman Hulshof. While I did not agree to his basic request, I think I misunderstood the tone of the request. I state that not only for the Congress but for any member of his family who may be watching, that I do -- I -- in 26 years here, I have tried -- I believe I have a reputation for always trying to extend whatever courtesy is possible to all members of both the House and the Senate by the party.

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

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

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

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

I campaigned with Senator Ashcroft in St. Louis. I have known him for the past six years, and I have never known Senator Ashcroft to be a racist; nor have I ever detected anything but dignity and respect for one's skin color from John Ashcroft. He is a man of principle. He has been scrupulously put through an inquisition of mammoth proportion. And it is safe to say that this committee has looked into everything dealing with the career and character of John Ashcroft. We all know that no one is going to please all of you all the time, but John Ashcroft takes defending and upholding the law seriously, and I believe that's what matters the most.

The responsibility of the attorney general is to defend and uphold the law -- not to make the law. It is the responsibility of us, the Congress of the United States, to make the law. As I said earlier, I have watched bits and pieces of these hearings during the last two and a half days. I haven't watched them all -- believe it or not, little league soccer and junior varsity basketball games continue in spite of these very important hearings.

There's not a lot I can say today that hasn't already been said during these proceedings. However, I will say I am delighted that outside groups are making the determination on Senator Ashcroft. I heard Senator Biden say yesterday afternoon that he did not trust many of the interest groups that had gotten involved. And if Senator Biden was here today, I would say to him, I agree with you -- neither do I. I've been blindsided by them before, and so many of these groups totally disregard the facts. Not only do they want their own opinion; they want their own facts. So, again, if Senator Biden was here, I would say to him that I can relate to what he was talking about yesterday.

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

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

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

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

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

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

SEN. LEAHY: Thank you, Mr. Watts. I'd state parenthetically our -- well, I'm 60 years old, and that's quite a bit older than you are -- our children came along before we had the VCRs as youngsters. By the time we had it, they were old enough they didn't want me around to see what they were watching. (Laughter.) So I didn't have the chance to memorize these. I now have a soon-to-be 3-year-old grandson. If you would like me to tell you the whole transcript of Thomas the train, every song, I can do it -- in my sleep -- and often have.

Congressman?

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

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

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

Members of the committee, as pleased and honored as I am to be here today with my good friend and colleague J.C. Watts, my appearance here today is not as a sitting member of the United States House of Representatives. And, Mr. Chairman, if it is permissible, I would like to have my entire written statement submitted into the record so that I could perhaps address some of the points that have come before this committee in the last two days.

I sat through and listened very closely to Judge White's testimony today, and I found it very compelling, and very sincere -- no less compelling and no less sincere than the testimony that you heard from your former colleague, I believe, John Ashcroft, over the last two days. I do not know Judge White personally; I know him from the pages of the opinions that he has written. I know -- probably I presume that he knows me through the many thousands of pages of court transcripts that I had the occasion to participate in -- criminal trials back in Missouri. And I am not here in any respect to cast aspersions. I am a member of good standing in the Missouri Bar, and I am very watchful of my comments towards a sitting member of the judiciary.

However, as the co-prosecutor in the James Johnson case, which has received such national attention -- and I think it's received national attention not because of the gruesomeness of the facts of the convicted multiple cop-killer, but because as my friend J.C. has alluded to, these horrendous charges that John Ashcroft's vote against Judge White was based on other than legal grounds. These comments, or insinuations even, overtly or not so overtly, of racial motivations, have me as John's friend and as a Missourian deeply troubled.

So, let me, if I can as a fact witness, talk a little bit about this particular criminal case. I was a special prosecutor for the Missouri attorney general for a number of years, and was assigned to assist the locally-elected prosecuting authority, John Kay (ph) in Moniteau County back when these crimes occurred in 1991 -- Mr. Chairman, you all have talked at length about those facts, and I set them out in my written statement. But I want to just focus on some things perhaps to give you a sense of gravity about what this case meant to this small rural community.

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

Well, after Deputy Roark (ph) assured himself that this domestic quarrel had ended at the James Johnson residence, and as he turned to retreat to go to his waiting patrol car, James Johnson whipped out a .38 caliber pistol from the waistband of his pants and fired two shots into the back of the retreating officer. Johnson then went back into the home, sat down, where he could hear the moans of the officer clinging valiantly to life, laying face down on the gravel driveway outside his home. At that point Johnson then got up from the table, walked outside, pointed his gun over the fallen officer, and pulled the trigger one last time in an execution style killing.

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

Shortly after that, James Johnson got into his vehicle and negotiated 10 or 12 miles of winding road looking for the sheriff of the county, Kenny Jones. He knew where the sheriff lived. And, as luck would have it, Sheriff Jones was not at the residence. But the sheriff's wife Pam was. And again, as fate would have it on that night, Mrs. Jones was leading a group of her church friends in the Christmas program. And if I can try to, Mr. Chairman, pain a visual picture for you, imagine a normal living room somewhere in America, with a woman seated at the end head and women in folding chairs around her in the living room, with Pam Jones' eight-year-old daughter Lacey at her knee. Christmas decorations adorn the living room, and on a table next to the window, brightly wrapped Christmas packages waiting to be exchanged. What you cannot see in that picture, however, just outside that window, James Johnson lay in wait with a .22 caliber rifle, and from her perch shot five times inside the house, killing -- gunning down Pam Jones in cold blood in front of her family.

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

SEN. LEAHY: Of course.

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

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

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

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

The points I'd like to raise briefly about the quality of James Johnson's representation is this. He hired counsel of his own choosing. He picked from our area in mid-Missouri what we've referred to -- as I refer to as a dream team. And Senator Sessions, as you pointed out earlier, the resumes of these three individuals, who were experienced attorneys in litigation as well as criminal law, attorneys who had tried a capital murder case together -- there was a finding by another court that they provided highly-skilled representation as they tried to deal with these very unassailable facts, this very strong case that the prosecution had.

There was a detailed confession Mr. Johnson had given to local law enforcement officers. There were other incriminating statements that he had made to lay witnesses. We had circumstantial evidence, including firearms identification, a host of other factors. And against this backdrop of a very tough prosecution case, these three defense attorneys labored mightily to try to provide an insanity defense, post-traumatic distress disorder, commonly referred to as the Vietnam flashback syndrome.

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

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

Says Sheriff Jones, "As you know, much has been said about John Ashcroft and his fitness for this office. I, for one, support his nomination and urge this committee to support him as well. Last year Senator Ashcroft was unjustly labeled for his opposition to the nomination of Judge Ronnie White to the federal district court.

"This one event has wrongly called into question his honor and integrity. Be assured that Senator Ashcroft had no other reason that I know about to oppose Judge White except that I asked him to. I opposed Judge White's nomination to the federal bench and I asked Senator Ashcroft to join me because of Judge White's opinion on a death penalty case."

Moving to page three, again, Sheriff Jones: "In his opinion, Judge White urged that Johnson be given a second chance at freedom. I cannot understand his reasoning. I know that the four people Johnson killed were not given a second chance. When I learned that Judge White was picked by President Clinton to sit on the federal bench, I was outraged," says Sheriff Jones. "Because of Judge White's dissenting opinion in the Johnson case, I felt he was unsuitable to be appointed for life to such an important and powerful position.

"During the Missouri Sheriffs Association annual conference in 1999, I started a petition drive among the sheriffs to oppose the nomination. The petition simply requested that consideration be given to Judge White's dissenting opinion in the Johnson case as a factor in his appointment to the federal bench. Seventy-seven Missouri sheriffs, both Democrats and Republicans, signed the petition, and it was available to anyone who asked.

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

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

SEN. LEAHY: I thank you. I thank both members. And I do appreciate Sheriff Jones being here. I repeat part of what I said on the Senate floor about Sheriff Jones on October 21st, 1999. I said, "I certainly understand and appreciate Sheriff Kenny Jones deciding to write to fellow sheriffs about this nomination. Sheriff Jones' wife was killed in the brutal rampage of James Johnson, and all senators give their respect and sympathy to Sheriff Jones and his family." On the day of the debate, the one thing we all agreed upon, Sheriff, was how horrified we were at what happened and the sympathy we have.

Like a number of others in the Senate, I have prosecuted a number of murder cases, tried -- in fact, for eight years I tried virtually all the murder cases, tried them personally, that came within our jurisdiction. Some of them were horrific. Others were -- an example, as anybody in law enforcement knows, but we call it and use that terrible expression, the friendly murder, the family dispute that gets out of hand; all tragic, all horrible.

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

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

But Congressman, you've been, as you said yourself, both a prosecutor and a public defender. Before I was a prosecutor, I defended only (upon?) an assigned-counsel basis. We didn't start a public defender until partway through my prosecutor's career. Frankly, I found it easier being the prosecutor.

But you had to help defend a person who was accused of murder, and I would assume that, as that defense attorney, you zealously worked to acquit him. Would that be right? I mean, that's what you'd be required to do.

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

SEN. LEAHY: I assume under Missouri procedure, you'd have -- once there's been a conviction, you have then a subsequent hearing on the question of penalty. And I would assume with that you would argue, of course, that even though, now that he's been convicted of murder, you would then argue that he not get the death penalty.

REP. HULSHOF: That's correct, Mr. Chairman.

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

REP. HULSHOF: That is correct.

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

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

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

SEN. LEAHY: Go ahead.

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

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

REP. HULSHOF: I'm not sure of the exact -- I've got the opinion, but I'd love to be able to explain, since I've never had the opportunity to talk about it, and perhaps to set the record here. The perimeter evidence -- as you might expect, when word went -- when the hue and cry went out to law enforcement that there had been this crime spree, this rampage over a period of time roughly between 7:30 in the evening until 1:20 the next morning, hundreds -- in fact, as we learned later, probably over 100 officers responded and participated in this manhunt. The defendant, James Johnson, actually concealed himself in the home of an 82-year-old woman.

SEN. LEAHY: The call of "officer down" galvanizes all law enforcement. (I've been there?).

REP. HULSHOF: Absolutely. And at some point, after Mr. Johnson had been taken into custody and the tedious process of the collection of evidence began, it was determined there was this crude alarm system, as the court calls the perimeter evidence, of a rope with some tin cans, and inside those tin cans, pieces of gravel, so that if a person were to trip it, that you would hear this noise. It was collected by the officers, but there was no report as to who had collected it, who had put it there.

There was also some evidence that the vehicle that Mr. Johnson had abandoned had four flat tires, and no one was quite sure -- at least there were no police reports indicating who had flattened those tires. And so really it was not a relevant trail for the prosecution to go down. And we did not know, Mr. Chairman, as we walked into court on the day that the trial began, who had set the perimeter evidence, who had disabled the car. And quite frankly, as our theory of the case was focusing on these nationally renowned mental health experts that the defense had hired to bring in on post-traumatic stress disorder, that we were clearly focusing on other matters, thinking this perimeter evidence to be a curiosity.

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

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

SEN. LEAHY: I only get the chairmanship for a few days. I'll take the bench if you want -- (inaudible).

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

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

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

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

SEN. LEAHY: I understand. Senator Hatch.

SEN. HATCH: I want to -- excuse me, let me get this up a little closer. 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 first-hand account of what happened and why you oppose 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 judges 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 that you've done as a prosecutor, 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 is 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.

But Judge White -- 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. Are you familiar with that case?

REP. HULSHOF: Yes, sir, I am.

SEN. HATCH: All right. Now, you are an expert, an 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 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 is testimony on this last panel on victims' rights. And 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.

REP. 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 of itself? And I am paraphrasing what you've said, but is an error committed by the criminal defense attorney, in and of 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 defense penalty cases or even in a felonious stealing case.

SEN. HATCH: Was that the rule of law that should have been applied in this case?

REP. HULSHOF: It was not the rule of law that should have 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 it 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 --

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

REP. HULSHOF: Let me, if I could, try to answer the second part of your question as far as the effect of 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 have 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, 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. You know, I think the farther that I personally get away from 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 farther 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 into 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 the case of a reversal, it is at least the opportunity that that convicted killer can be freed. 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. So clearly, again, I can see that I'm probably teetering on 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.

SEN. HATCH: Thank you very much.

SEN. LEAHY: The senior senator from New York.

SEN. SCHUMER: Thank you, Mr. Chairman. And I want to thank both of our witnesses for taking their time and 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 -- (inaudible). And 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 with 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 that 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, and that's a fair debate.

But in no way did Ronnie White condone these grisly 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 surely 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 is talking about a fair trial, I don't think fair trial ever enters into what side one is on. There's 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 the representative, Representative Hulshof, would you say that any candidate for judge should be rejected because, as a legal matter, he had 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?

REP. 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. Regarding the -- 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's the language that I find particularly troubling. It's the sentence just where you stopped.

"But the question of what" -- and I'm quoting from State versus 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, as 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 legal disease in our state. But, putting that aside, I think you ask 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 am going out on a limb, because I am not a member of this body --

SEN. SCHUMER: You know, that's a --

REP. HULSHOF: But --

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

REP. HULSHOF: But if I could be permitted to follow, just as I don't believe a jurist should be disqualified for 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 it 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, since that reflected on his fitness for office. And I think as John Ashcroft said on the floor, on October the 5th, if I am 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. So that's the point of my --

SEN. SCHUMER: Let me -- 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 -- Senator Specter --

SEN. LEAHY: Senator Specter was concerned that you had gone over -- you have gone over less time than he went over earlier this morning, but if you want to --

SEN. SCHUMER: I apologize --

SEN. SPECTER: Well, now, wait a minute, Mr. Chairman, that red light has been on on the other side, including you, for a very protracted period of time --

SEN. LEAHY: Two minutes and 21 seconds.

SEN. SPECTER: And when I was questioning Judge White I was cut off. And I'd just ask you a question: Does the red light apply only on this side of the table? That's my question.

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

SEN. 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, to 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 -- Senator Thurmond. Senator Thurmond.

SEN. THURMOND: Thank you. Congressman Watts and Congressman Hulshof, I greatly appreciate your appearing 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 does a terrible harm to our society, and society must be tough on crime. I thank you.

SEN. LEAHY: (Off mike.) The distinguished senior senator from Illinois, Senator Durbin.

SEN. 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 that. 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 a question of his mental capacity. And his defense counsel decided to construct a defense -- which is novel -- of post-traumatic stress syndrome -- and then proceed to argue that before the jury. And he used as evidence of that this so-called perimeter which was around the defendant's house, and the fact that the tires on his truck were flat, to say that this reminded the defendant that he was back in Vietnam -- 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 them.

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 was that he was entitled to a fair trial, and that counsel he was given did not give him a fair trial.

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 Damask (ph) case, which was cited by John 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, congressmen, 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. And I'd like to give you a chance to respond.

REP. HULSHOF: I appreciate that. It's interesting, if I could -- I find myself in an unusual position, Senator Durbin, in that as a 10-year career prosecutor that I am defending defense counsel. The same individuals that you are 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 testimony or from your statement -- coming up with this extraordinary defense about this post-traumatic stress, or as lay people call it, 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 hostage in her own home, allowed her to leave. She informed law enforcement officers that "the man you are looking for is in my house." So the helicopters come in and they surround the house, and an experienced hostage negotiator on a bullhorn says, "Pick up the phone," and 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 "Sergeant Calley," or "Lieutenant Calley," which of course if you follow Vietnam history as this, by the way, highway patrol negotiator knew that Lieutenant Calley 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 of course 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 stress 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, renown around the country. 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.

SEN. DURBIN: If you will spare me and allow one closing sentence. If reasonable minds can disagree, then 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?

SEN. LEAHY: Both of us agree. Go ahead with your answer.

REP. 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 our - -these United States -- he took that same measure seriously, his role then of advice 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. Thank you.

SEN. LEAHY: With that we will go to the senior senator from Pennsylvania.

SEN. SPECTER: Thank you. Congressman Hulshof, Senator Durbin, I think you both made 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 his 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 the 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 to Judge White's confirmation?

REP. HULSHOF: I appreciate the question. There is no question in my mind, knowing John as I do from his 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 or better than I, having worked alongside 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 --

SEN. SPECTER: Without taking too much more time.

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

SEN. SPECTER: Well, this has been the most heated confirmation process that I have seen. I am now in my 21st year serving on this committee, and the confirmation process as to Judge Bork was no picnic. And the confirmation for Justice Thomas as no picnic. And the confirmation process as to Chief Justice Rehnquist was pretty heated. And we have 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 emphasized didn't come from Judge White -- didn't come from the witness. And there have been threats of filibuster. And if John Ashcroft is as bad as the witnesses on this side of the table have characterized him, as bad as the senators have characterized him -- if he's that bad, they know how to stop him.

But it really isn't all that bad, because when you strip down to the issue we have 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.

SEN. LEAHY: The -- if the senator wants to finish his question, feel free.

SEN. SPECTER: Thank you.

SEN. LEAHY: Do you want to finish your question? No. We'll go to Senator Kyl. Not hearing an answer, I assume you don't want to. Go ahead, Senator Kyl.

SEN. KYL: Thank you, Mr. Chairman. I would like to submit for the record a series of endorsements by various law enforcement organizations for John 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 have 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 characterize 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 are going to hold otherwise, we are going to put ourselves in this Catch-22: Either the jury acquits, or it's error before 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 am 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 the defense counsel, inadequacy of counsel, had any effect on the jury. And of course the majority opinion in the case said whatever the situation with regard to defense counsel, it had no effect on the jury. 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 insanity, whatever drove him to go from law-abiding citizen to multiple killer was certainly something akin to madness.

Now, there is 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 lie 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 the 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 Ms. 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 are 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 and 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 that 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 one hundred, and there was full opportunity for debate and clarification, if anybody had felt that necessary. Thank you.

SEN. LEAHY: I thank the senator from Arizona.

The senior senator from Ohio.

SEN. DEWINE: I have no questions, Mr. Chairman, thank you.

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

The senator from Alabama.

SEN. SESSIONS: 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 for Christian Athletes, and it was a special time, and they were really inspired and motivated by what you do. It may be 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 Jon Kyl the problem the defense was they had no defense. The guy was caught flat-footed, and given 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 a fair characterization of it?

REP. 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 court -- the judge who presided over the trial did her job. I think the litigants battled furiously for their respective sides. The jury did their job, and then the case went on to appeal, and then we have had the decision that we have been discussing.

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

REP. HULSHOF: Yes, sir.

SEN. 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 to 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?

REP. 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.

SEN. 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 a 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 a 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 just issued an endorsement for Senator Ashcroft. I'm going 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?

REP. HULSHOF: It is, Senator Sessions.

SEN. SESSIONS: And as have the Sheriffs 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. And I would offer those into the record.

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

SEN. LEAHY: Do you have something further? Go ahead.

SEN. SESSIONS: I will stay within my time.

SEN. LEAHY: Well, I've -- you'd be one of the very few on either side of the aisle who has, but I appreciate it.

SEN. SESSIONS: Well, I would just offer that and say there are other letters of significance from organizations that (should be submitted?).

SEN. LEAHY: We'll keep the record open, of course, under our normal practice for senators on either side of the aisle to submit letters or others. Does the senator from Kansas wish to ask questions?

SEN. SAM BROWNBACK (R-KS): Yes, I would, if I could. Thank you very much for coming in, Kenny; 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 is back in football, like when you were quarterbacking.

Briefly, if I could, Congressman Hulshof, I think because 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 towards criminals, whether he would be tough on crime or if he was going to be soft on crime.

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

I'd also point out the National Sheriffs Association saying, "I'm writing to ask you to join the National Sheriffs 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's letter, who I would have loved to have heard your testimony as well in this case, opposed to his appointment to the federal bench; and then the Missouri Sheriffs Association asking, "We strongly consider his dissenting opinion in the Missouri versus Johnson case."

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

REP. 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 talked about -- the Johnson case; there was a Kinder case; there were some others, again. And I think he 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. 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, if I could, just as John Ashcroft, I believe, is a man of the highest moral integrity and character, I think he would make an exceptionally qualified U.S. attorney general.

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

REP. WATTS: Senator, I've just -- I shared in my testimony or 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, underserved 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. So -- 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.

SEN. BROWNBACK: Thank you very much. Thank you both for joining us, too.

SEN. LEAHY: Thank you. The senator from --

SEN. SESSIONS: (Inaudible) -- one more letter?

SEN. LEAHY: The senator from Alabama can interrupt any time he'd like. You go right ahead.

SEN. SESSIONS: You're very kind. You've been very patient. This is from the Mercer County prosecuting attorney's office. And I note some have objected to John Ashcroft's use of the word "anti-law enforcement," but this is a letter he had back at that time. "Judge White's record is unmistakably 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. I would just offer that as a basis for Senator Ashcroft to have said what he said.

SEN. LEAHY: I'm sure that will be part of the debate for the next several weeks. But I would also note, 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.

With that, we will --

SEN. HATCH: If I could just make last one comment -- which, of course, makes my point that there's reason to be on either side of this issue. And it's a little offensive to have some accusing Senator Ashcroft of insensitivity. 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.

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

SEN. HATCH: Right.

SEN. LEAHY: And that -- well, 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 can 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.)

(END OF PANEL II, MORNING SESSION. REMAINING PANELS WILL BE SENT UNDER DIFFERENT HEADINGS.)

END

LOAD-DATE: January 19, 2001