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Burden of Proof

Ashcroft Confirmation Hearings: Capitol Hill Braces for Holy War in the Senate Chambers

Aired January 16, 2001 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Capitol Hill braces for a holy war in the Senate chambers. Under fire from the left, conservative John Ashcroft walks into a confirmation battleground. Will he become the next attorney general?


KATHY RODGERS, DIRECTOR, NOW LEGAL DEFENSE AND EDUCATION FUN: This public office, above all others, is not the platform for using the power of the federal government to advance a narrow, extremist political and very personal agenda. John Ashcroft represents the antithesis of what this position requires.

MORT KLEIN, PRESIDENT, ZIONIST ORGANIZATION OF AMERICA: I'm so proud of Senator John Ashcroft. He is truly a man of our times; strong, tough, fair, and a fighter. We need him as our attorney general. I urge that we all fight to ensure his confirmation.


ANNOUNCER: This is BURDEN OF PROOF with Greta van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

In one hour, members of the Senate Judiciary Committee will begin confirmation hearings for George W. Bush's nominee for attorney general.

The man tapped to head the Justice Department is one of their former Senate colleagues.

ROGER COSSACK, CO-HOST: Former Missouri Senator John Ashcroft lost his seat last November. But the Republican politico stands to obtain a considerable post in Washington. And the battle over his nomination could be the most contentious since the confirmation hearings of Supreme Court Justice Clarence Thomas.

VAN SUSTEREN: Joining us today from Columbia, Missouri, is Jay Nixon, who's the attorney general for the state of Missouri. From Chicago, we're joined by law professor Steve Lubet.

COSSACK: Joining us from Atlanta is Republican Congressman Bob Barr. And here in Washington, Reiner Prochaska (ph), Tom Jipping of the conservative think-tank Free Congress Foundation, and Will Tiao (ph).

VAN SUSTEREN: And in the our back row, Ashley Dean (ph) and Butch Hansen (ph).

Congressman Barr, first to you. If you were to give a little advice to Senator Ashcroft, what pitfalls would you tell him to avoid as he begins his testimony today?

REP. BOB BARR (R), GEORGIA: Smile, tell the senators that they are the greatest deliberative body in the world, and you respect their opinions, and be very, very tough on the questioning, but smile while you are answering the questions.

VAN SUSTEREN: And who would be the senator who, you think, is likely to attempt to give you the most trouble, if you were Senator Ashcroft?

BARR: Well, I think the current chairman, Leahy, will be very, very tough. He will be basically, I think, carrying the water for the extremists on the left.

But Mr. Ashcroft, of course, is a -- is a former colleague, and I think even though the questioning will be tough -- and it ought to be tough -- I have no problem at all with withstanding -- standing and going toe-to-toe with NOW and the other groups out there. But I think that Mr. Ashcroft will have to hold his own.

Basically, they are using him as a stalking horse to throw some jabs at the Clinton -- the Bush administration even before it takes office. That's why they have scheduled these while the Democrats are nominally in charge of the Senate. So it gives them a little more control over the agenda.

And I think that Mr. Ashcroft just realizes that they are really throwing barbs at the Bush administration to bloody it up a little bit; that he's going to get confirmed anyway. So, just have as good a time as you can, be very forthright in your answers, but smile a lot.

COSSACK: Tom, what are legitimate questions that could be asked to Mr. Ashcroft? That -- what's legitimate? And I suppose, what's out of bounds?

TOM JIPPING, FREE CONGRESS FOUNDATION: Well, I do think questions that go to the kind of job he's going to have as attorney general. Those questions about: Will you enforce the law? Those kinds of things that people are concerned about, those are fair questions. Because that's the job of -- because that's the job of the attorney general.

What I think is out of bounds, because this is not an election, he's not running for anything, is his personal politics. The senate has never rejected a Cabinet nominee simply because they disagree with his politics.

And besides, it's going to be the politics of the president that's ultimately going to determine what happens there.

COSSACK: Don't you think his history, his -- what he's done in his past, though, is relevant to whether or not he will enforce the law? I mean, there is a question there...

JIPPING: Well, I mean, he's always going to have...

COSSACK: ... of whether or not you are going to say...

JIPPING: I'm sure...

COSSACK: ... well, those are laws, yes, do you believe...

JIPPING: Sure. He always has enforced the law, both as a state attorney general, as a governor. And what -- what's interesting, I think, what I encouraged them to look into, frankly, is he's going to enforce the law in part because he believes so strongly in the separation of powers.

His position, for example, that judges should not cross the line and make law, is the very position that says an executive branch official should not cross the line and make law.

He believes, probably more strongly than the people he will be talking to on the Judiciary Committee, that each branch of government has a particular function. He knows what it is. He's done it before; he'll do it now.

VAN SUSTEREN: Jay, you probably -- you and the rest of the members of the state of Missouri -- know Mr. Ashcroft a little better than we do. On the issue of whether he will enforce the law, when he says: Yes, I will enforce the law, to what do we look? and to what does the Senate look to see whether or not, indeed, that's going to be the case?

JAY NIXON, ATTORNEY GENERAL OF MISSOURI: Well, it's, first of all, stunningly naive for people to say the job of the attorney general is merely enforcing the law. You have the opportunity to be aggressive or absent in a huge number of fights.

And that's what's so dangerous about John Ashcroft. He's not been afraid to use his personal politics in public life. It certainly didn't stop him from turning down President Clinton's nominee, Satcher; other nominees he's been against for political reasons.

And our fear is that he's going to take that same view as a senator to his job as attorney general, as he did here in Missouri when he was attorney general.

VAN SUSTEREN: How did he -- how did he do it specifically in the state of Missouri when he was attorney general? What did he do that was sort of an activist attorney general? or what did he effect?

NIXON: Well, I think that the antitrust action he filed against the National Organization for Women saying, dealing with the ERA, was a bizarre lawsuit, and which was thrown out by the courts. His continuing efforts to not be strong when he was governor, even though the legislature passed a horse-racing bill, we never got horse racing in Missouri because John Ashcroft wasn't for horse racing.

Those types of actions, where you can mix enforcement and politics, clearly paint a picture of someone whose personal agenda will be carried out. That's not to say he won't enforce laws that are on the book, but when you talk about an aggressive action, or an absenteeism, that's the areas that John Ashcroft is really, really open to criticism.

COSSACK: Steve, Tom says that, in fact, a nominee has never really been turned down because of his political past; that in fact the issues that he should be questioned on -- about are relatively narrow: enforcement of the law and perhaps nothing more, and his history perhaps may not be relevant in that issue; do you agree or disagree?

STEVE LUBET, LAW PROFESSOR: It is extremely important to consider Senator Ashcroft's history when it comes to other nominees, specifically Justice Ronnie White. He led the charge, really vilifying Justice White, calling him "pro-criminal," simply on the basis of what were mainstream, traditional, legitimate judicial opinions. And that tells me that Justice -- excuse me that Mr. Ashcroft just doesn't understand the function of judges, the idea of judicial independence, and the idea of judicial ethics.

And since the Justice Department vets judges, very dangerous to have a man like that as attorney general.

COSSACK: All right. Let's take a break. When we come back, the question is: Will John Ashcroft's personal and political viewpoints impact how he might run the Justice Department? Stay with us.



CHARLES POLK, ASHCROFT ADVISER: He has been governor, senator and attorney general of the state of Missouri. He upheld all laws vigorously then. He has the experience to do the job. There's no doubt in my mind that he will do the job as attorney general for the United States.

REV. C. WELTON GADDY, EXEC. DIR., INTERFAITH ALLIANCE: I have grave concerns about Sen. Ashcroft's ability to serve as attorney general of the United States, a position in which he would be charged with upholding and fully enforcing the Constitutional rights and liberties of faith groups that he clearly judges to be wrong and in need of correction.


COSSACK: In a little more than 45 minutes, confirmations hearings will begin for Bush's nominee as the next attorney general. Former Sen. Ashcroft faces opposition because of his views on abortion and civil rights issues.

Congressman Barr, as a philosophical point, is it right to expect Sen. Ashcroft to enforce laws that he may feel morally, because of his strong religious views, that he is opposed to, and he, therefore, would be in conflict with acting as the secular head, the attorney general, versus his own personal religious views. Is it wrong that we should expect him to do that, or should we even ask him to do that?

BARR: It's not wrong. I think it's absolutely essential that if one is willing to and does take the oath of office as the attorney general, you have to enforce the laws even if you may disagree with them from a personal standpoint. Now, that is not to say that Mr. Ashcroft or any attorney general needs to sit there like a bump on a log and simply, by rote, enforce the law. Certainly there is latitude, as there ought to be in any administration, to prioritize the resources of the Department of Justice consistent with the priorities of the president; that is, George W. Bush.

But even though there is room for him to prioritize the resources, and even though, as attorney general, if he disagrees with the law, he ought to urge the administration to seek a legislative change, those laws that are on the book he must enforce regardless of his personal views.

VAN SUSTEREN: Jay, let me ask you since you are an attorney general on a state level now. Can an attorney general -- Congressman Barr uses the term "prioritize" in terms of making decisions. Is it possible that an attorney general can manipulate. And so let's -- can you substitute out the word "prioritize" to have the effect to "manipulate" what happens?

NIXON: You bet. Attorney generals have a great deal of discretion as to where they put their resources, energy and effort, especially on those cases that we bring or those cases that we dismiss. And quite frankly, a good example of that is when John Ashcroft was governor working with Bill Webster here, they intervened and got involved in right-to-die issues and went to the United States Supreme Court. When I was elected...

VAN SUSTEREN: But is there anything wrong with, I mean, when you're putting the issue in the courts to decide. I mean, he wasn't deciding himself, he was saying, look, this is an issue, I may not agree with it and we'll put it into the other body to decide. Is there anything wrong with that?

NIXON: Tens of thousands of Missouri families have been forced into making a difficult decision with the clergy, the family and the doctors present to end life support. John Ashcroft and Bill Webster decided to choose a few families to be poster families to test their right-wing ideology in the appellate courts: the Cruzan case and Busalocki (ph) case. Now, the Busalocki case I dismissed an hour after I was sworn in as attorney general in Missouri, and that was turned back to a private choice.

The danger you have with someone like John Ashcroft is him taking his personal political views and injecting them in an aggressive way as he did in the right-to-die issues here in Missouri.

COSSACK: And Tom, that brings it right up to a point that I wanted to talk to you about. Congressman Barr said that one of the things the attorney general could do would be to urge the administration to change or to review certain laws that that attorney general, perhaps, disagrees with. And we know because Sen. Ashcroft has been so public what his views are, isn't therefore -- isn't it correct to question him about these views because it is a concern that if you put him in as attorney general, he may go ahead and say, President Bush, why don't you think about this?

JIPPING: Well, sure. Well, look, America elected a pro-life president, a conservative pro-life president. He's appointing a conservative, pro-life attorney general. That's the nature of the administration.

VAN SUSTEREN: Don't forget it was a national vote issue. Except, Tom, you got to recognize the fact that it's divided.

JIPPING: That's the nature of the administration that's coming in, and so it shouldn't surprise anybody that they may want to push various policies in that direction. What I think will happen is exactly what you described, but it be done in the proper way, which is instead of manipulating individual cases and trying to change the law in his own capacity, he would do it the right way. If there's policy changes he would recommend, he'd go to the president, he'd go to Congress. If the legislature -- legislation needs to be changed, he'd recommend that that be done. It would be debated through those channels. I mean, that's the way politics is supposed to operate.

But, you know, we have an administration coming in that is pro- life and it is more conservative than the previous one. That's what America elected. And four years from now, they'll have a chance to pass judgment on it.

VAN SUSTEREN: Except the one problem, Tom, is that this is -- while President-elect Bush has won, you know, there is also the issue, the fact that it's divided, and at least, sort of, he has to be somewhat moderate.


Let me go to Steve.

Steve, let me talk about the right to choose and Roe vs. Wade, which is the 1973 Supreme Court decision saying that there is this right. Is it possible that an attorney general -- can the attorney general in any way get rid of the constitutional decision made by the Supreme Court?

LUBET: Well, the attorney general can represent the United States in the Supreme Court and argue for the overturn of Roe vs. Wade. And one would expect that Sen. Ashcroft would do that if given the go-ahead by soon-to-be President Bush. But I do have to say...

VAN SUSTEREN: But there's a big difference between arguing, though, Steve and actually -- I mean, like, he's not deciding. I mean, the point is -- and, you know, also the basic question -- I mean, Jay says that you can figure out which cases you bring and do that. But I mean he's not the ultimate decision maker.

LUBET: He's not the ultimate decision maker. And I have to say that many, many Democrats say that I'm personally opposed to abortion, but Roe vs. Wade is the law and we have to abide by it. Mario Cuomo got famous saying that, and it's fair to give that leeway to Sen. Ashcroft too. If he says he'll enforce the law, I think that's the least reason, actually, to oppose him. There are better reasons...


LUBET: ... to oppose him. Well, his lack of respect for the judiciary. Senator -- Rep. Barr says that he should tell the senators that he respects their opinions...

VAN SUSTEREN: But he's put an African-American woman on the bench. I mean, are we...

JIPPING: He's approved a lot of black judges.

VAN SUSTEREN: Is it fair to focus on one nomination that apparently...

JIPPING: That 54 senators opposed.

VAN SUSTEREN: That -- well, he also marshalled. I mean, he got Kit Bond. Kit Bond had first introduced Ronnie White before the committee saying he's a great candidate, and then he changed his mind.

JIPPING: Fifty-four senators opposed him.

VAN SUSTEREN: But the point is -- let me go back to you, Steve -- is it fair to focus on one nomination or one -- or can we look at what John Ashcroft has done in connection with the entire judiciary>

LUBET: Well, of course you have to look at the bigger picture. you also have to look at his words of praise for the Confederacy and ask if those views need to be represented in the U.S. Justice Department at the very top.

VAN SUSTEREN: All right, we're going to take a quick break. When we come back, the Supreme Court and the attorney general and what it will mean to you. Stay with us.


VAN SUSTEREN: For much of the 2000 campaign, the legal debate surrounding the presidential candidates focused on potential vacancies on the Supreme Court bench. But these justices are also affected indirectly when a new administration moves to Washington. There will soon be a new head of the Justice Department, and a new solicitor general headed to argue before the highest court in the land. Tom, let me go back to a topic we talked about, Ronnie White. I have looked at Ronnie White's record, and I thought that Senator John Ashcroft was dead wrong, in terms of calling him soft on crime, especially comparing him to some of Senator Ashcroft's own people that he ushered through to the court. But my question to this: Do we look at simply one what I would call, you know, wrong, when we measure what his contribution or what he could do to the Judiciary?

JIPPING: Very good question. I mean, I have looked at the record, law enforcement groups have looked at the record, they disagree with you...

VAN SUSTEREN: Not all law enforcement. Wait, let's be fair, some did, some didn't.

JIPPING: A lot of them did and 54 senators did too. But to address your question about the whole judiciary, if you look at the whole picture, 245 judges were voted on by the Senate during John Ashcroft's six years. He supported 233 of them, 95 percent. And on the ones that he opposed, an average of 32 senators joined him in opposing them; far more than the average. Which means he was careful in who he chose to oppose, and he only opposed those whose views were so controversial that a majority of Republicans joined him.

VAN SUSTEREN: Therein lies the weakness because Ronnie White shouldn't have been controversial because he wasn't, quote, "soft on crime." If you actually look at...

JIPPING: But lots of people disagree with you. Reasonable people could disagree.

VAN SUSTEREN: I disagree.

COSSACK: While you two are disagreeing, could I get a word in here and talk to Congressman Barr for a second?

Congressman Barr, is it right to ask the senator about his speech before Bob Jones University? Obviously, a controversial place, a place that has programs, or at least philosophies that are injurious and hurtful to many people in this country.

BARR: Frankly, I don't think that any of the issues we have been discussing are out of bound. I think that John Ashcroft comes from a very strong position. He can explain, I think with a tremendous integrity, why he gave that speech there. He can give his personal views on Bob Jones University's policies and so forth.

It would be the same if somebody said, well, is it legitimate to ask Dick Gephardt why he has spoken to groups over the years with strange racial views? or why Bill Clinton signed proclamations in support of American figure from the Confederacy when he was governor of Arkansas?

COSSACK: Congressman, and I agree with your answer, that it is right to say, but I mean doesn't it put the man -- he is asking to be the attorney general of the United States in a difficult position, when he has this history, and he has spoken at least at Bob Jones University, and I'm not here to say right or wrong, but I am saying it is clear that that is a place that has philosophies that is hurtful to many people in our country.

BARR: I think, Roger, if you look at any political figure, and I include yourselves in that group, you are political figures, you help mold -- both you and Greta -- in a very positive way, public opinion through the issues and your program. If you were held accountable and chastised because you spoke to a group with whom you disagree, or because you found out later they had said something or took a position that's a wrong position, we wouldn't be hearing from anybody in any forum.

VAN SUSTEREN: Which Congressman Barr raises the question I have always wondered, I mean, none of these things were big secrets ahead of time. Why not just have offered him like Transportation or something, in light of the fact that he did have these issues? I mean, it is almost as though we sort of create these battles. I mean, certainly he has a history of being an attorney general, and it makes him -- at least he's done the work to be an attorney general, but why -- he could have been Transportation?

BARR: Well, this, we found out over the last eight years, just how important having a good attorney general can be because we haven't had one. And I think that people have fresh in their mind, and Governor Bush I think does also, how important this position is. I think he looked at John Ashcroft and saw a man of tremendous integrity, who has a background in law enforcement, both at the federal level and at the state level.

VAN SUSTEREN: And let me just -- before we run out of time, I just want to say one thing is that I will defend Attorney General Janet Reno to at least your description. I think that Attorney General Janet Reno worked hard for this country.

COSSACK: Jay Nixon, you know Senator Ashcroft, and I know your opinions of him; do you believe he's a racist?

NIXON: No. Make no mistake, John Ashcroft is not in the mainstream of American political thought. It is not an accident that he sees the world in a very narrow way. And, if confirmed, the furor that is coming up during these hearing will be nothing compared to the furor in this country, which is growing more diverse by the minute, in appointing an attorney general which grows more narrow by the minute.

COSSACK: All right, that's all the time we have for today. Thanks to our guests, and thank you for watching.

VAN SUSTEREN: Join us again tomorrow for another edition of BURDEN OF PROOF. We will see you then.



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