John Ashcroft's big mistake

He denied Ronnie White a federal judgeship for being soft on crime, when his real grudge was against his pro-choice politics -- and the move cost him his Senate seat.

Published January 9, 2001 12:10AM (EST)

He couldn't have known it at the time. But on Oct. 4, 1999, when Missouri Sen. John Ashcroft rose on the floor of the United States Senate to oppose the nomination of a black Missouri judge to the federal bench, the conservative Republican was about to give the most politically damaging speech of his 25-year career.

At that moment it represented a triumph for Ashcroft. He'd dropped plans to win the 2000 Republican presidential nomination due to little support, and he'd made an equally lackluster run to become chairman of the Republican National Committee in 1993. So Ashcroft's ability to convince every one of his GOP colleagues to join with him in voting down the nomination of Missouri Supreme Court Justice Ronnie White -- the first time Republicans had publicly rejected one of President Clinton's judicial nominees -- signaled real influence within the Republican Party.

Standing on the floor of the Senate, Ashcroft seemed to go out of his way to belittle and ridicule White. The Missouri senator labeled the Democratic judge "pro-criminal," and cautioned colleagues that White would substitute "personal politics" for the law, and "improperly exercise his will" if confirmed. That, despite the fact that White's judicial record was not all that different from judges Ashcroft had appointed to the Missouri Supreme Court when he was governor.

After the vote Ashcroft crowed that White's defeat was a victory for Missouri law enforcement. Instead, the "victory" haunts Ashcroft to this day. It ended his elected political career last Nov. 7, when Ashcroft lost his first statewide runoff in more than two decades. And now it appears to be the only obstacle standing in the way of him becoming George W. Bush's attorney general, as critics prepare to use the White nomination to question both Ashcroft's racial tolerance and his sense of political fair play.

That's a high price to pay for opposing a district judge, which is why in retrospect Ashcroft's militant objection to White -- or his "marathon public crucifixion," as one of Ashcroft's own fund-raisers put it last year -- seems so puzzling, and oddly personal.

No doubt it was actually political. Ashcroft thought tarring White with the pro-crime brush, and defeating his nomination, would help him in his reelection battle with Missouri Gov. Mel Carnahan, who'd gotten into political hot water after he commuted a death sentence in 1999 at the behest of Pope John Paul II.

While White's defeat galvanized African-Americans, who believe Ashcroft's crusade had racial overtones, the Republican's grudge against the moderate Missouri judge may have had more to do with Ashcroft's extreme anti-abortion agenda than either race or purported concerns about White's toughness on crime. Ashcroft and White had battled over abortion in Missouri since the early 1990s, when White was a state legislator and Ashcroft was governor.

Why would the rabidly anti-abortion Ashcroft cloak his opposition to White's nomination in terms of concern about crime? Politics. In the normally collegial Senate, there's an unwritten agreement that abortion won't be used by either side as a litmus test to block nominees. Ashcroft may have also gambled, and lost, that a crusade against White based on abortion would cost him more politically than one based on concerns about crime -- which, when used against a black judge, couldn't help but have racial overtones.

Perhaps Democratic members of the Senate Judiciary Committee, who will certainly press Ashcroft about the White battle during his upcoming confirmation hearing, will have better luck figuring out exactly why the Republican fought his fellow Missourian's relatively low-level nomination so fiercely. In fact, White himself may appear before the committee. More than a year after White's rejection, many political observers in Missouri, who doubt that White is either a pro-criminal jurist or an anti-death penalty zealot, are still scratching their heads over Ashcroft's ill-conceived and ultimately self-destructive crusade.

"It's perplexing," says Ken Warren, professor of political science at St. Louis University. "Republicans and Democrats alike cannot understand Ashcroft's opposition to Ronnie White." For Ashcroft politically, "it was like injecting cyanide into his veins," says Warren.

White's defeat stunned Democrats and created a firestorm of controversy, with President Clinton labeling the vote a "disgraceful act." In Missouri, tempers flared for weeks, particularly among African-Americans who were outraged Ashcroft not only opposed White's nomination but, they insist, routinely and maliciously misrepresented his judicial record.

"He demonized the nomination of an extremely well qualified jurist by falsifying his record and by misrepresenting his ideology," says Yvonne Scruggs-Leftwich, executive director of the umbrella civil rights group the Black Leadership Forum.

"I suspect Ashcroft underestimated what the importance was," says David Bositis, senior policy analyst with the Joint Center for Political and Economic Studies in Washington, a think tank focusing on issues important to African-Americans. "He'd been able to win elections as governor and senator with just a handful of votes from blacks so he probably thought it wasn't going to be that big a deal. Instead, it turned out to be why he lost reelection."

Indeed, blacks didn't just get mad, they got even. "Our efforts to defeat the senator began on the day Ronnie White's nomination was denied," says Rev. Sammie Jones, pastor of Mount Zion Baptist Church in St. Louis. "Across the state we began making phones calls and to make plans to let Senator Ashcroft know come election time our voices would be heard. The Ronnie White situation is kind of our Alamo. We will remember that every time we hear Ashcroft's name."

In one of the clearest examples of retaliation voting, African-Americans, whose Missouri voter turnout rate reached record levels last November, turned Ashcroft out of office despite the fact that his opponent, Gov. Mel Carnahan, had died in a plane crash three weeks before the election. "Maybe Ashcroft thought we'd take it like we took it for so many years. He certainly didn't think he'd lose the election," says the Rev. B.T. Rice, pastor of the New Horizon Seventh Day Christian Church in St. Louis.

Rice claims Ashcroft had never been a friend to minorities. In a now-famous interview with Southern Partisan magazine, Ashcroft praised the "honor" of Confederate commanders and praised the magazine for making clear the Confederacy was "not a perverted agenda."

Ashcroft is widely known for opposing St. Louis' plans for school desegregation, blocking the nomination of Bill Lann Lee to head up civil rights enforcement at Janet Reno's Department of Justice, as well as Clinton's choice of Dr. David Satcher, the black nominee for surgeon general. But it was the senator's opposition to White that galvanized the black community. "We sent a very clear message that that kind of demagoguery would not be tolerated," says Rice. (He concedes that having voted Ashcroft out of office only to see him nominated for attorney general simply adds to blacks' frustration.)

Conventional wisdom suggests Ashcroft lost because his dead opponent's widow was chosen to succeed him and garnered sympathy votes. But Bositis argues Ashcroft, thanks to passions stirred by the Ronnie White saga, was headed toward a narrow yet decisive defeat even if the governor's plane had not perished. "The election was a referendum on the incumbent and he came up short," he says. (Interestingly, Bush won Missouri by 80,000 votes; Ashcroft lost by 50,000.)

Ronnie White was nominated in June 1997 by President Clinton to the Federal District Court of the Eastern District of Missouri, based in St. Louis.

Ashcroft might have opposed White on various grounds, such as his lack of experience. But Ashcroft himself was never a stickler for seasoning when it came to selecting judges. Back in 1985 the then-governor appointed his 30-something chief of staff to Missouri's Supreme Court. The number of days his aide had served as a judge before being sworn in to the state's highest court? Zero.

And initially, Ashcroft gave little indication that he'd block the appointment of his fellow Missourian. Both men owed their ascension in Missouri politics to a fortuitous tap on the shoulder. For Ashcroft, that tap came in 1973, when then-Gov. Christopher "Kit" Bond handpicked Ashcroft, who at the time was a political novice with one failed congressional run, to fill out the term of state auditor. Even with the aid of incumbency, Ashcroft lost his reelection bid as auditor. But he soon found a position in John Danforth's state attorney general's office.

In 1976 the clean-cut Ashcroft became Missouri's attorney general, a position he held until 1985 when he was sworn in as governor, succeeding his political patron, Bond, who was off the United States Senate. In 1994 Ashcroft captured 60 percent of the vote and easily won a seat of his own in the Senate.

White's political good fortune arrived in 1989, when Democratic officials needed to fill a state representative position after the incumbent quit midterm to accept a judgeship. White, a little-known attorney with the St. Louis Housing Authority, got the nod and served out the term. Representing a heavily Democratic district, he easily won reelection. Four years later White was tapped to become the city's general counsel.

The very next year Gov. Carnahan named White to the Missouri Court of Appeals in St. Louis. One year after that, Carnahan tapped White again, this time to the Missouri Supreme Court. In just six years White went from being a staffer at the St. Louis Housing Authority to sitting on the Missouri Supreme Court.

His rapid rise continued; one year after White reached the Supreme Court, Bill Clay, the congressman from St. Louis, recommended White for a federal judgeship, a nomination he received in 1997.

Like most women and minority nominees to the bench, White's name quietly languished for months in the Republican Senate through 1997 and 1998. By then Ashcroft's opposition to White was clear and most assumed he was the one holding up the process behind closed doors. But it wasn't until 1999 when the senator began his reelection run against Missouri's popular Gov. Carnahan that Ashcroft's anti-White rhetoric began to heat up.

In the end, Ashcroft's central argument was that White was "pro-criminal," a charge loaded with racial overtones. "It means prisons are full of blacks and if you get black folks on the court you're going to have anarchy," says Scruggs-Leftwich at the Black Forum. "Those are code words understood by African-Americans."

But Ashcroft admirers like Kris Kobach, a professor of constitutional law and legislation at the University of Missouri-Kansas City Law School, point out Ashcroft has supported 26 of 28 black judges nominated by Clinton, and as governor appointed the first black judge to an appellate court as well as appointed blacks to his Cabinet. "He trusts and takes advice from African-Americans," says Kobach. Other supporters note he backed the somewhat controversial Martin Luther King Jr. Day holiday, and Ashcroft himself denies the charge of racism, insisting "the same God judges all of us by the content of our character, not the color of our skin."

All that adds to the suspicion that this fight was really about something else. Could Ashcroft's real motivation for opposing White have been abortion? It would explain the animus Ashcroft held for the nominee, since the two crossed swords over the hot-button topic during the early '90s, when White was a state representative and Ashcroft the governor.

In 1991, longtime Ashcroft foe and the Democratic Speaker of Missouri's General Assembly Bob Griffin awarded White the chairmanship of the Civil and Criminal Justice Committee. Griffin then made sure to steer all anti-abortion legislation into White's committee where he helped thwart it.

In the spring of 1992 an especially contentious anti-abortion bill calling for prison terms for doctors was awaiting vote in White's committee. The chairman called for a meeting on March 2, but promised no votes would be taken. Halfway through though, a roll call was taken and with one anti-abortion representative not present the bill lost on a vote of 8-8, since a tie meant the legislation died in committee. Proponents of the bill, including Ashcroft, cried foul over White's tactics.

But to the dismay of anti-abortion activists in Missouri, Ashcroft, who recently supported a constitutional amendment that would outlaw abortions, including in instances of rape and incest, rarely uttered the word abortion during his public fight against White's nomination. Instead he emphasized the issues of crime and the death penalty.

Why? Politics, says Warren at St. Louis University. "It would have been unsellable to Republicans if Ashcroft opposed Ronnie White based on abortion rights," he says. "Republicans and Democrats have pledged an unsigned promise that when confirming nominees a litmus test cannot be if he or she is for or against abortion rights. Plus, Republicans are starting to become aware that taking adamant anti-feminist positions will kill you."

Still, there are lots of clues that abortion drove Ashcroft's opposition. What was the senator's first question to White in the May 14, 1998, hearing before the Senate Judiciary Committee? "Justice White, if the Supreme Court were to uphold a federal partial birth abortion ban as constitutional, would you have any difficulty in applying a decision of the Supreme Court which upheld such a law?" White said he would not.

At the time, White's view of the death penalty did not seem to be of paramount concern to Ashcroft. In fact, during White's May appearance before the Judiciary Committee Ashcroft never even questioned the nominee about the topic, nor about what Ashcroft later dubbed White's "pro-criminal" leanings.

That same year during a televised debate, Kit Bond's re-election opponent accused him of bottling up the White nomination. Bond denied the charge but conceded that concerns about White's abortion rights record were causing the delay.

When White's nomination finally passed out of Judiciary Committee on a 15-3 vote May 21, 1998, Ashcroft cast one of three dissenting votes. At the time he could have raised a formal objection that would have almost certainly doomed the nomination then, but he did not. Instead, like a doctor examining X-rays, Ashcroft announced he had detected "indications of potential activism" in the judge's record and was voting no. He made little mention of the death penalty.

So what happened to pique Ashcroft's interest in the death penalty between May of 1998 and October of 1999 when White was defeated? The Pope paid a visit to St. Louis.

In December 1998 the Missouri Supreme Court scheduled the execution of convicted murderer Darrell Mease for the night of Jan. 29, 1999. That just happened to be the same day Pope John Paul II was going to be in St. Louis during his historic visit. The court quietly changed the execution date, but aides at the Vatican had already taken note.

On Jan. 29, Carnahan was asked to meet with the Pope's emissaries at the home of St. Louis Archbishop Justin Rigali. There, they urged Carnahan, a Southern Baptist, to spare Mease's life. Later, at a prayer service at St. Louis' Roman Catholic Cathedral, the pope, a crusading death-penalty opponent, approached Carnahan sitting in the front pew and asked him to "show mercy" on Mease. That night Carnahan created his own political firestorm when he signed papers commuting Mease's sentence to life in prison without parole.

Ashcroft, who received an honorary degree from controversial Bob Jones University, which has equated Catholicism with a cult, wasted little time tying Carnahan's decision to honor the papal request with a charge the governor was soft on crime. Ashcroft embarked on a victims' rights tour of Missouri, even inviting relatives of those murdered by Mease to testify. (The charge Carnahan was soft on crime never did stick, partly because he'd signed off on 26 executions as governor.)

Simultaneously, White's judicial record came under new scrutiny from Ashcroft, who warned that the Carnahan appointee would use the federal bench to "push the law in a pro-criminal direction, rather than defer to the legislative will of the people and interpret the law as written."

The record shows that as a justice on the Missouri Supreme Court White voted 41 times to affirm death penalty cases, and 18 times to reverse execution sentences. In many of those 18 rulings White joined the majority with justices appointed by Ashcroft. Five of those 18 decisions striking down death sentences were unanimous, where White was joined by conservative Missouri Supreme Court Justice Stephen Limbaugh, cousin of Rush Limbaugh. Just three times in nearly 60 death penalty cases did White write solo dissents urging death row prisoners be granted new trials. And in none of White's decisions did he argue the death penalty was unjust or unconstitutional.

In what may have been an unprecedented standard for nominees facing federal confirmation, in the final days of his campaign to defeat White, Ashcroft and his allies based their entire opposition around a single "shocking" dissent written by White while his nomination was pending. (The conservative press now clings to the same one dissent to justify Ashcroft's crusade.)

It involved the 1991 killing spree of James Johnson, a helicopter mechanic from California, Mo., who, during a 24-hour frenzy, stalked and murdered three sheriffs and the wife of another. Johnson was sentenced to death. In 1998 the Missouri Supreme Court heard Johnson's plea for a new trial. He lost by a vote of 6-1, with White being the lone dissent. White never suggested Johnson was innocent or that his crimes did not warrant the death penalty. "If Mr. Johnson was in control of his faculties when he went on this murderous rampage, then he assuredly deserves the death sentence he was given," White wrote.

Instead, White argued Johnson's "unprofessional" counsel botched his defense by badly exaggerating, in the trial's opening statement, the post-traumatic stress disorder syndrome symptoms Johnson was supposedly suffering at the time of the killings. They were exaggerations counsel never backed up in court.

"I find it is reasonably likely that a jury that had not seen the defense destroy its own credibility would have been sufficiently receptive to the expert diagnosis of a mental disease or defect to permit a reasonable likelihood of a different result."

White wrote that opinion in April 1998. Sixteen months later in August 1999, Ashcroft held a press conference to criticize it.

At the time, Ashcroft also insisted Missouri law enforcement was up in arms over White's nomination and that he was responding to their groundswell of concern. But the groundswell, such as it was, had been entirely concocted by Ashcroft. Two police groups, the Missouri Fraternal Order of Police and the Missouri Police Chiefs Association, declined to oppose White's nomination, even after they were lobbied directly by Ashcroft's office. The Missouri Sheriffs Association did object to White, but two years after he was nominated, and only after a member read about Ashcroft's August press conference in the newspaper. So much for a grass-roots movement against White.

If Ashcroft's behavior during the White nomination was puzzling, Sen. Bond's 11th-hour flip-flop bordered on the bizarre. The senior, and more moderate, Republican senator from Missouri originally gave White his blessing, and even introduced him to the Senate Judiciary Committee, where he urged members to "act favorably" on a nominee "of the highest integrity and honor." As the process dragged on and White's nomination languished for months and then years, Bond reportedly pleaded unsuccessfully with Ashcroft to ease off the judge.

During Bond's 1998 reelection campaign he met with 100 black Missouri ministers at Roberts Steak House in St. Louis. During a question and answer session the Rev. Rice stood and asked Bond if he would support White's nomination. According to Rice, "He said, 'Most certainly I will.' All those preachers heard him say that."

Bond won reelection handily, thanks in part to winning roughly 30 percent of the black vote, an astonishing showing for a Republican candidate.

In January 1999, with no action taken by Congress, Clinton had to re-nominate White, and Bond again said he would support him.

Nine months later though, and one day after Ashcroft rose to oppose White on the floor of the Senate, Bond addressed members of the Republican caucus during its weekly meeting. There, behind closed doors, in a 20-second briefing, he announced he was now opposed to White's nomination. Two hours later the vote on White became a hard, party-line effort. Why? "To back up a Republican in a close Senate race, they all rallied behind Ashcroft," says one congressional aide who dealt with the White nomination.

Why, for a nomination that had been languishing for over two years and one that he initially sponsored, did Bond wait until the day of the vote to change his mind? At the time, he claimed he "did not have an opportunity to look at this [matter] sooner."

Since both senators from White's home state were voting against him, his confirmation, according to Senate protocol, was doomed. But unlike virtually every other scuttled judicial nomination, White's was voted down in public, a particularly humiliating defeat. (Today, the battle for judicial nominees is simply to make it to the Senate floor for an up or down vote; once there, they usually pass overwhelmingly.) In fact, White became the first District Court nominee voted down by the full Senate in nearly half a century.

"Senator Ashcroft could have killed the nomination in committee but he chose to do it a way that Justice White cannot ever be rehabilitated as a nominee again," says Rice. "That was to add insult to injury."

As Ashcroft prepares for his own confirmation hearing, his Missouri opponents want to make sure his colleagues understand what happened to Ronnie White. To advance his extreme anti-abortion agenda, as well as his own career, a United States senator denied a federal judicial nominee confirmation by grossly distorting his record. And if Ashcroft's rejection of Justice White leads to his own rejection by the Senate, so be it, his opponents say.

Either way, says Rice, "It's a decision John Ashcroft needs to live with."

By Eric Boehlert

Eric Boehlert, a former senior writer for Salon, is the author of "Lapdogs: How the Press Rolled Over for Bush."

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