On Day 2 of his confirmation hearing, Attorney General-designate John Ashcroft spent eight hours on the hot seat of the Senate Judiciary Committee. Even as they grilled Ashcroft about his stands on abortion, gay rights and the environment, some of the most dogged Democrats seemed to be ready to concede that the fight against his nomination was a lost cause.
They had good reason for throwing in the towel. Georgia Democrat Zell Miller became the first in his party to pledge to support Ashcroft when his nomination reaches the floor of the Senate. Miller specifically addressed charges that Ashcroft is a racist. "I would not vote to confirm someone who I thought was a bigot or would hamper the cause of African-Americans," Miller declared. "I believe him when he says he will ... enforce the laws of this land, even those he disagrees with."
Miller's Democratic colleagues on the Judiciary Committee have yet to be convinced. Vermont Sen. Patrick Leahy started in on Ashcroft in the first moments of Wednesday's hearing, correcting the former Missouri senator on his responses to Tuesday's questions about a school desegregation case in St. Louis. Leahy pointed out at great length that Ashcroft was mistaken when he said that Missouri was never a party to a desegregation lawsuit that the nominee litigated for years as that state's attorney general. Utah Sen. Orrin Hatch, Ashcroft's chief defender on the panel, didn't appreciate the effort.
"I don't think it needed a correction," Hatch said, implying that the Democrats were willfully ignoring what he and the nominee considered a clear response. "I think it was just as plain as the nose on our faces." The testy exchange between Leahy and Hatch was a preview of what would be an ongoing snipefest between the two men that lasted from the opening gavel at 10 a.m. until the final witnesses were dismissed at about 9 p.m. EST.
Throughout the day, most of the panel's Democrats zeroed in on one or two special policy concerns, grilling Ashcroft over his record and his newfound enthusiasm for moderation. Illinois' Dick Durbin manned the guns on Ashcroft's Bork-ing of Ronnie White, an African-American Missouri Supreme Court justice who was denied a spot on the federal bench. Durbin called White "an extraordinary man with an extraordinary record" and scolded Ashcroft for instigating the Senate's "shabby treatment" of him.
Leahy and others on the panel questioned Ashcroft about his reputed hostility to gay rights, recalling his successful efforts to block the nomination of James Hormel as ambassador to Luxembourg in 1997. Leahy pointed out that Ashcroft even refused to meet with Hormel at the time. "Did you block his nomination from coming to a vote because he was gay?" Leahy asked. "Sexual orientation has never been something I used in hiring or firing," Ashcroft said. (His responses to questions about legislating an end to discrimination against gays were parsed to the extent that they differed from this line.)
California's Dianne Feinstein also asked about Hormel, but concentrated on Ashcroft's assertion during Wednesday's hearings that he would uphold abortion rights statutes and gun laws that he opposes. "I see a kind of metamorphosis going on, a mutation ... that somebody who has been really on the far right of many of the issues ... is now making a change," Feinstein said. "Quite frankly, I don't know what to believe."
Feinstein rattled off a list of past statements by Ashcroft, including his characterization of the Roe vs. Wade decision as "a miserable failure" and his declaration as Missouri governor that the 16th anniversary of that decision should be a "day in memorial for aborted fetuses." Feinstein gently demanded that Ashcroft demonstrate a willingness to set aside those sentiments if and when he runs the Justice Department.
Ashcroft said he would, detailing stands he had taken in the past that were intended to "reduce and curtail the abortion of unborn children" without infringing on a constitutionally recognized right. These positions included allowing an exception for rape or incest but banning abortions for gender selection or to avoid giving birth to a racially mixed child.
The social conservative also stressed that he could adapt his skills as an ideologue to the demands of the nation's top law enforcement office. "I know the difference between an enactment role and an enforcement role," he said.
All the moderate talk, declared New York Democrat Charles Schumer, didn't match what he knew of Ashcroft's past views. "I sit here listening to this hearing, and my jaw almost drops," he said. Schumer, like Feinstein, covered abortion and gun control in his questioning, asking Ashcroft if he would commit to enforcing rules allowing for stem cell research involving fetal tissue and would advise officials at the Department of Health and Human Services that such research was acceptable. Ashcroft, who had earlier stated that Roe vs. Wade was a matter of "settled law," equivocated on this more specific question.
"I will be law oriented and not results oriented," Ashcroft said, a phrase that became his mantra in tough policy corners. "I will provide my best advice [to the president] regarding the law, including the law as expressed by the Supreme Court in Roe vs. Wade."
That apparently sounded like a dodge to Schumer, who pressed the point further. "If the legal opinion, the predominant legal opinion, was that stem cell research was allowed, was part of the settled law of Roe," Schumer asked, "that would be your guiding light here, not an ideological belief that we shouldn't allow it?"
"I will give them my best judgment of the law, and if the law provides something that is contrary to my ideological belief, I will provide them with that same best judgment of law." At that point, Schumer gave up. "I don't think I can push you any further," he said, "although I wish the answer were a little clearer."
The same pattern had played out when Wisconsin Sen. Russ Feingold asked about campaign finance reform and racial profiling, and it continued later when Delaware's Joe Biden dogged Ashcroft for an interview he gave to neo-Confederate journal Southern Partisan in 1998. The magazine is dedicated to rehabilitating Southern Civil War heroes, and has occasionally run articles seeking to justify or minimize the transgressions of slavery.
Though Ashcroft insisted that "discrimination is wrong, slavery was abhorrent," he repeatedly stopped short of Biden's request that he condemn the publication outright. "I condemn the things that are condemnable," Ashcroft offered. Biden asserted that Ashcroft's timidity about denouncing Southern Partisan demonstrated "a bit of bullheadedness at least," and also showed that Ashcroft was still clueless about African-American opposition to his nomination. "I hope you understand why for so many -- as this stuff comes out -- so many average black Americans say, 'Jeez, I don't want this guy.'"
Republicans, however, clearly wanted their guy to succeed and tried at every opportunity to act as if no great ideological battle was at stake in Ashcroft's confirmation. The panel's GOP members led him through a maze of intricate policy questions guaranteed to elicit noncontroversial answers and bore bloodthirsty partisans.
Iowa's Charles Grassley was desperately curious about how Ashcroft would respond to antitrust questions and changes in agricultural policy. Sen. Arlen Specter of Pennsylvania wanted to hear more about the nominee's views of the effect of international trade law on OPEC's plan to raise oil prices. Ohio Sen. Mike Dewine asked about Ashcroft's efforts to bring back American kids taken overseas illegally by foreign-born parents.
The only Republican who seemed willing to pick a major fight was Arizona's John Kyl, who took Massachusetts Sen. Ted Kennedy to task for his strong anti-Ashcroft statements at Tuesday's hearing. Kyl sneered at Kennedy's criticisms that Ashcroft is out of the mainstream on gun control, school desegregation and voting rights. "It's not appropriate to throw out charges," Kyl said.
Kennedy responded with angry bluster, and insisted that his most serious charge -- about Ashcroft's opposition to expanding the base of black voters -- was absolutely true and relevant to Ashcroft's confirmation. "I think it's important to the quality of the person that is going to be the head of the Justice Department and I don't retreat one step on it!" Kennedy said.
Somewhat ominously, the Massachusetts Democrat said he didn't have the time Wednesday to fully explain his difficulties with Ashcroft but would gladly take "as much time as necessary" to explain them on the Senate floor.
Ronnie White is scheduled to testify Thursday, and while he's not expected to sway enough votes to prevent Ashcroft's confirmation, his appearance before the body that denied him a federal judgeship should be the high point of the week's drama.