As the battle over Attorney General-designate John Ashcroft rages and the rhetoric is ratcheted up, more and more of Ashcroft's allies are taking aim at the man emerging as his most damaging nemesis, Judge Ronnie White. Yet one person remains conspicuously absent from the conservative's amen chorus: Rush Limbaugh.
Of course, the conservative talker is ranting about the "disgusting" attempt to kill Ashcroft's nomination, led by "dangerous," "fundamentally lawless" and "undemocratic" liberals who live "outside the mainstream of American life."
But in recent days Limbaugh has seemed reluctant to pull the character assassin's trigger the way so many of his conservative colleagues have when it comes to defaming White, Missouri's first black state Supreme Court justice whose nomination to the federal bench Ashcroft derailed last year. That episode of hardball has returned to haunt Ashcroft as his critics prepare to use it to question both the nominee's racial tolerance and his sense of political fair play during his confirmation hearings this week.
To help soften those blows, Ashcroft's allies are busy once again ridiculing White. Republican National Committee chairman Jim Nicholson sent an e-mail alert last week stressing, "Ashcroft voted against that judge because of the lack of content of Ronnie White's character, not the color of his skin." Beverly LaHaye, founder of Concerned Women for America, told National Public Radio, "John Ashcroft has shown his respect for the law. Unlike White, he realizes there are laws that are meant to protect the innocent and bring justice to the guilty." And asked how Ashcroft allies should respond to the Ronnie White question, G. Gordon Liddy told MSNBC's Chris Matthews, "First thing I'd do would be counterattack. I'd really expose the guy."
So why isn't Limbaugh skewering White's judicial record and holding him up to public ridicule as a liberal, soft-on-crime judge in advance of White's crucial testimony during Ashcroft's nomination this week? Maybe it's because Limbaugh, whose family is steeped in Missouri law and its judiciary, actually knows better than trying to judge a state Supreme Court justice based on a single opinion. Maybe it's because Limbaugh's cousin, Justice Stephen Limbaugh Jr., sits on the Missouri Supreme Court with White and might not sit by quietly if Rush started demagoguing White the way others on the right have. The two judges represent opposite ends of the political spectrum. Limbaugh is easily the most conservative member of the Missouri Supreme Court. But White and Limbaugh have become friends. When named to the Missouri Supreme Court, neither Limbaugh nor White moved his family to the state capital of Jefferson City, so the men often eat dinner together and read briefs late into the night in their next-door offices.
Should Rush decide to tell his listeners that Ashcroft was right to oppose White because the black jurist could not be trusted to be tough on criminals (killers in particular), then the dozens of times White and Limbaugh have agreed on death penalty cases might pose a bigger problem. In most of those instances, the two voted to affirm executions. But on occasion, they teamed up to overturn death sentences for murderers whose guilt was never in doubt. Instead, White and Limbaugh joined majority decisions in ruling that due to inadequate counsel or legal missteps by trial judges, convicted killers were entitled to new sentencing trials.
Yet according to the Ashcroft camp, White was rightfully denied a seat on the federal bench simply because of one 1998 case, State vs. Johnson, in which he wrote a lone dissent suggesting that cop-killer James Johnson deserved another sentencing trial because of his attorneys' botched defense. That's how White, in the words of Ashcroft, morphed into a "dangerous," "activist" justice who "would use his lifetime [federal] appointment to push the law in a pro-criminal direction." Since White has voted to affirm death sentences roughly 70 percent of the time, that's a characterization almost no one familiar with the Missouri Supreme Court would likely take seriously, including Justice Limbaugh.
The fact is, if the new Ashcroft standard for federal judicial nominees were adopted and opponents of nominees could simply cherry-pick one or two opinions in which nominees voted to overturn death sentences in particularly shocking, cold-blooded cases, Stephen Limbaugh Jr., the law-and-order justice, might no longer be qualified for the federal bench.
On April 14, 1994, Leon Taylor robbed a gas station in Independence, Mo. While Taylor's accomplice ran back to the car with $400 in a bag, Taylor took the gas station manager and his 8-year-old stepdaughter to the station's backroom. There he shot the manager once in the head, killing him, and then aimed the gun at the girl only to have the trigger jam. Frustrated, he fled.
After Taylor was found guilty, his prosecutor told jurors they should "get mad" during their penalty phase deliberations and decide the case based on their emotions. Taylor's lawyer objected but was overruled. Upon review, White and Limbaugh both agreed that the prosecutor stepped over the line with his comments, and joined in a majority decision that "because the trial court overruled defense counsel's objection to the argument, the appeal to emotion had the stamp of judicial approval." They voted for a new penalty trial, reasoning that "a reasonable probability exists that the jury would have reached a different result without the improper argument."
A similar case arose in 1999's State vs. Rhodes, in which Bernard Rhodes entered the house of 81-year-old Dorothy Martin on July 16, 1997, looking for something to steal. He bound the old woman's legs and arms and then beat her. Annoyed by her screams, he suffocated her by placing a plastic bag over her head. He later confessed.
But his death sentence was appealed because Rhodes' prosecutor appealed to jurors' emotions when he asked that they put themselves in the old woman's shoes the day she was beaten and killed. White and Limbaugh agreed in the majority opinion that "arguments for the death penalty designed to cause the jury to abandon reason in favor of passion are improper" and reversed the death sentence.
If Ronnie White is "pro-criminal," as Ashcroft insists, the judge has hid it well. He wrote the unanimous Missouri Supreme Court decision upholding the death sentence of career criminal James Henry Hampton. On the night of Aug. 2, 1992, Hampton, wearing dark clothing and a stocking cap over his face, entered the home of a 58-year-old hairdresser and her fianci, demanding $30,000. Hampton forced her into his car and warned the fianci that if news of the kidnapping came over the police scanner he had in his car he would kill the woman. Around 2 a.m., after hearing just such a dispatch over the scanner, Hampton took the woman to a wooded area and killed her with several hammer blows to the head.
Writing for the court, White, joined by Limbaugh, affirmed Hampton's first-degree murder conviction. Hampton died in Missouri's death chamber last March.
Maybe that's why Rush isn't talking.
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