Floor Statement on the
Nomination of John Ashcroft to the Office of Attorney General

January 29, 2001

Having reviewed the hearing record and the nominee's responses to written follow-up questions from the Judiciary Committee, I come today to announce and explain my opposition to the nomination of John Ashcroft to be Attorney General of the United States.

I take no pleasure in having reached this decision. I have voted or will be voting to confirm nearly all of the President's cabinet nominees. No one in this chamber more than I would have wanted a nomination for Attorney General that the Senate could have approved with one voice. As the Ranking Member of the Senate Judiciary Committee I will be working closely with the new Attorney General on a daily basis, and I would have wanted to begin that relationship with enthusiastic support for the President's choice. I also had the privilege of working with John Ashcroft during the six years he served as a United States Senator. Most of us know him and like him. I admire his personal devotion to his family. While we were not always in agreement, I respect his commitment to the principles he firmly holds and his right to act on those principles.

The fact that many of us served with Senator Ashcroft and know and like him does not mean that we should not faithfully carry out our constitutional responsibility in acting on this nomination. No one nominated to be Attorney General of the United States should be treated specially -- either favorably or unfavorably -- by this body because he or she once served in the Senate. Our guide must be constitutional duty and not friendship.

Most of us believe that a President has a right to nominate to Executive Branch positions those men and women whom he believes will help carry out his agenda and policies. But it is only with the consent of the Senate that the President may proceed to appoint. yes">  The Constitution is silent on the standard that Senators should use in exercising this responsibility. This leaves to each Senator the task of discerning that standard and deciding how it applies in the case of a controversial nomination such as that of John Ashcroft.

The Senate's constitutional duty is to advise and consent, not advise and rubber-stamp. Fundamentally, the question before us is whether Senator Ashcroft is the right person at this moment for the critical position of Attorney General of the United States.

This is an especially sensitive time in our nation's history, and many seeds of disunity have been carried aloft by winds that have come in gusts -- most recently, out of Florida. The presidential election, the margin of victory and the way in which the vote counting was halted by the United States Supreme Court remain sources of public concern and even alienation. Deep divisions within our country have infected the body politic. We experienced the closest presidential election in the last 130 years and possibly in our history. For the first time, a candidate who received half a million fewer popular votes was declared the victor of the presidential election, by one electoral vote. The Senate, for the first time in our history, is made up of 50 Democrats and 50 Republicans. Although this session of Congress is less than one month old, each political party has already had its leaders serve as Majority Leader, and Senate Committees have already operated under both Democratic and Republican Chairs.

Much has been made of what has come to be known as "The Ashcroft Evolution" where activist positions he has held and valiantly advanced appear now to be suddenly dormant in deference to settled law, at least as of the confirmation hearings. But leaving Senator Ashcroft aside for a moment, it must not be left unremarked that he is not the only politician who has sent conflicting signals about his view of governing. We have also seen two distinct sides of the new President since he was declared the victor after the November election. One side is the optimistic face of bipartisanship -- a sincere and knowledgeable President determined to work with like-minded Democrats and Republicans to overhaul the way we educate our children. This is a side of hope, cooperation and compromise.

In fact, in his encouraging inaugural address barely ten days ago, President Bush acknowledged the difficulties of these times and the special needs of a divided nation. He said: "While many of our citizens prosper, others doubt the promise, even the justice, of our own country." He recognized that deep differences divide us and pledged "to work to build a single nation of justice and opportunity." I applaud the new President for those words.

These crucial weeks and months after the divisive election are an especially sensitive time when hope and healing are waiting to emerge, but they are fragile, like the first buds of the sugar maple.

Yet on the other side of the ledger is the President's decision to send to the Senate the nomination of John Ashcroft: A man we know and respect, but a man we also know held some of the most extreme positions on a variety of the most volatile social and political issues of our time. Civil rights. Women's rights. Gun Violence. Discrimination against gay Americans. The role of the Judiciary.

Appointing the top law enforcement officer in the land is the place to begin if the goal is bringing the country together. I wish the President had sent us a nomination for Attorney General that would unite us instead of divide us. That did not happen. This is a nomination that had controversy written all over it from the moment it was announced, and it should surprise no one that today we find ourselves in the middle of this battle. It was a crucial miscalculation for the President and his advisers to believe this nomination would have brought all of us together. Or perhaps this is one instance where consensus was not the objective.

Many organizations and their members have weighed in on either side of this debate, and some advocates for the nominee have been especially critical of the membership groups that oppose this nomination. It must be said that the only political pressure groups that have had a decisive role so far in this nomination are the far-right wing elements of the Republican Party who insisted on this particular nominee and who bragged that they had vetoed other, more moderate, candidates for this job.

What is crystal clear to me is that the nomination of John Ashcroft does not meet the standard that the President himself has set. In those who doubt the promise of American justice, it does not inspire confidence in their United States Department of Justice.

The Senate can help mend these divisions, give voice to the disaffected, and help to restore confidence in our government, but only if it remains true to its constitutional responsibilities. At a time of intense political frustration and division, it is especially important for the Senate to fulfill its duty.

One of the abiding strengths of our democracy is that the American people have opportunities to participate in the political process, to be heard and to feel that their views are being taken into account. When the American people vote, every vote is important and should be counted. Then when we hold hearings and when we vote, we are cognizant that each of us has sworn an oath to uphold the Constitution. Each action we take as United State Senators must be consistent with that oath. There are 280 million Americans in this country, but only 100 of us will have the license and the obligation to vote on this nomination.

There is a reason many of us believe the job and role of Attorney General is the most important job in the cabinet. The extensive authority and discretion and important role of the Attorney General all demand that our Attorney General have the trust and confidence of all the people. The Attorney General is the lawyer for all the people and the chief law enforcement officer in the country.

We all look to the Attorney General to ensure even-handed law enforcement and protection of our basic constitutional rights including: freedom of speech, the right to privacy, a woman's right to choose, freedom from government oppression, and equal protection of the laws. The Attorney General plays a critical role in bringing the country together, bridging racial divisions, and inspiring people's confidence in their government.

Senator Ashcroft has often taken aggressively activist positions on a number of issues that deeply divide the American people. He had a right to take these activist positions. We have a duty to evaluate how those positions would affect his conduct as Attorney General.

John Ashcroft's unyielding and intemperate positions on many issues raise grave doubts both about how he will interpret the oath he would take as Attorney General to enforce the laws and uphold the Constitution, and about how he will exercise the enormous power of that office.

Let me be clear: I am not objecting to this nominee simply because I disagree with him on ideological grounds. I am not applying the "Ashcroft Standard" as he applied it to Bill Lann Lee and other presidential nominees over the last six years. My conclusion is based upon a review of John Ashcroft's record as the Attorney General and then Governor of Missouri, as a United States Senator, and his testimony before the Judiciary Committee. It is based on how he has conducted himself, and what positions he has taken while serving in high public office while sworn to uphold the Constitution.

President Kennedy observed that "to govern is to choose." What choices the next Attorney General makes about resources and priorities will have a dramatic impact on almost every aspect of the society in which we live. The American people are entitled to be sure not just that this nominee says he will enforce the laws on the books, but also to be sure what his priorities will be, what choices he is likely to make, and what changes he will seek in the law. Most importantly, we are entitled to know what changes he will seek in the constitutional rights that all Americans currently enjoy. These include what positions he will urge upon the Supreme Court and, in particular, whether he will ask the Supreme Court to overturn Roe v. Wade or to impose more burdensome restrictions on a woman's ability to secure legal, safe contraceptives. On several of those issues, such as his lifelong opposition to a woman's right to choose and support for measures to criminalize abortion, even in cases of rape and incest, and limit access to widely used contraceptives, Senator Ashcroft is far outside the mainstream. The controversial positions taken by this nominee and his record require us to reject this nomination as the wrong one for the critical position of Attorney General of the United States at this time in our history.

It is in part because I know John Ashcroft to be a person of strong convictions and consistency that I am concerned that he cannot disregard those long-held convictions if he is confirmed by this body. It troubles me that he took essentially the same oath of office as Attorney General of Missouri that he would take as Attorney General of the United States, yet he acted differently than he tells us he would act this time.

Senator Ashcroft assumed a dramatically different tone and posture on several matters during the course of his hearing:

The new John Ashcroft did not oppose the nomination of James Hormel because of his sexual orientation. The new John Ashcroft is now a supporter of the assault weapons ban. The new John Ashcroft is an ardent believer in civil rights, women's rights, and gay rights. The new John Ashcroft believes Roe v. Wade is now settled law.

In fact, the more I heard him defer to matters he has consistently opposed and sought to rewrite as "settled law," the more unsettling it became.

Yet occasionally we would get a peek behind the confirmation curtain, and what we saw was deeply disturbing:

• Senator Ashcroft was unrepentant in the way he torpedoed the nomination of Judge Ronnie White to the federal district court, despite calls from some Republican Senators who personally apologized to Judge White for the shabby treatment he received.
• Senator Ashcroft on the one hand denied that sexual orientation had anything to do with his opposition to the Hormel nomination then left the distinct but gratuitous impression that there was something unspoken, unreported yet unacceptable about Mr. Hormel that somehow disqualified him from serving the United States as Ambassador to Luxembourg.
• Senator Ashcroft repeatedly declined to show the slightest remorse for his appearance at Bob Jones University, for the enthusiastically supportive interview he gave with the pro-Confederate magazine Southern Partisan, and for some of the most inflammatory language I have heard about the federal judiciary since the most bitter and violent days of the civil rights movement.

Most of us in this body have known the old John Ashcroft. During the hearings we met a new John Ashcroft. Our challenge has been to reconcile the new John Ashcroft with the old John Ashcroft to find the real John Ashcroft who would sit in the office of Attorney General. Were the demurrals of his testimony real, or were they delicate bubbles that could burst and evaporate a year or a month or a day from now under the reassertion of his long-held beliefs?

Thus we come back again to why all of this matters. Why we treat this position differently than, say, Secretary of Commerce or Transportation: The position of Attorney General is of extraordinary importance, and the judgment and priorities of the person who serves as Attorney General affect the lives of all Americans. We live under the rule of law, the law touches us all every day in ways that affect our safety, our health and our very rights as citizens, and our Attorney General is our touchstone in the fair and full application of our laws. Thus, the Attorney General not only needs the full confidence of the President; he or she also needs the confidence and trust of the American people.

The Attorney General controls a budget of more than $20 billion and directs the activities of more than 123,000 attorneys, investigators, Border Patrol agents, deputy marshals, correctional officers and other employees in more than 2,700 Justice Department facilities around the country and in more than 120 foreign cities. The Attorney General supervises the selection and actions of the 93 United States Attorneys and their assistants and the U.S. Marshals Service and its offices in each State. The Attorney General supervises the FBI and its activities in this country and around the world, as well as the INS, the DEA, the Bureau of Prisons and many other federal law enforcement components.

The Attorney General evaluates judicial candidates and recommends judicial nominees to the President, advises on the constitutionality of bills and laws, determines when the Federal Government will sue an individual, business or local government, decides what statutes to defend in court and what arguments to make to the Supreme Court, other federal courts and State courts on behalf of the United States Government. As I said at the confirmation hearings for Edwin Meese to be Attorney General, while the Supreme Court has the last word on what our laws mean, the Attorney General more importantly often has the first word.

The Attorney General exercises broad discretion, largely unreviewed by the courts and only sparingly reviewed by Congress, over how to allocate that $20 billion budget and how to distribute billions of dollars a year in law enforcement assistance to State and local governments and coordinates task forces on important law enforcement priorities. The Attorney General must also set those priorities and make tough decisions about which cases to compromise or settle. A willingness to settle appropriate cases once the public interest has been served rather than pursue endless, divisive, and expensive appeals, as John Ashcroft did in the Missouri desegregation cases, is a critical qualification for the job.

There is no appointed position within the Federal Government that can affect more lives in more ways than the Attorney General, and no position in the cabinet more vulnerable to politicization by one who puts ideology and politics above the law. We all look to the Attorney General to ensure even-handed law enforcement; equal justice for all; protection of our basic constitutional rights to privacy, including a woman's right to choose and our rights to free speech and to freedom from government oppression. We look to the Attorney General to safeguard our marketplace from predatory and monopolistic activities and to protect our air, water and environment. The Attorney General, among all the members of the President's Cabinet, is the officer who must be most removed from politics to be effective and to fulfill the duties of that office.

I have a deep and abiding respect for the Senate and its vital role in our democratic government. Twenty-six years in the Senate have given me the privilege to know and work with hundreds of others in this body, and I cherish those friendships. But far beyond friendship, my first duty as a United States Senator from Vermont is to the Constitution that I have sworn to uphold. In the aftermath of the national election in November I have gone back to the Constitution several times, and I reread the Appointments Clause again this weekend.

I cannot give consent to the nomination of John Ashcroft to be Attorney General and be true to my oath of office. I do not have the necessary confidence that John Ashcroft can carry on the great tradition and fulfill the important role of Attorney General of the United States. The American people certainly are not united in any such confidence. This nomination does not help President Bush fulfill his pledge to unite the nation.

I will vote no when the Senate is asked to give its advice and consent to the nomination of John Ashcroft to be Attorney General of the United States.