The Case Against the Confirmation of John Ashcroft as Attorney General of the United States: PART I

Ashcroft’s sabotaging of Judge Ronnie White’s nomination.

In 1997, President Clinton nominated Judge Ronnie White of the Missouri Supreme Court to be a United States District Court Judge. Judge White, who had been appointed by Governor Mel Carnahan to the Missouri Court of Appeals and then to the state Supreme Court, was the first African-American to sit on the Missouri Supreme Court, and was unquestionably qualified to be a federal judge. Indeed, at the hearings on his nomination in May 1998, Judge White was introduced to the Senate Judiciary Committee by Republican Senator Christopher Bond of Missouri, who told the Committee:

    It is a real pleasure to be able to join with my distinguished colleague, the senior member of Missouri’s congressional delegation, Congressman Clay, to urge that this committee act favorably upon and send to the floor for confirmation the nomination of Judge Ronnie White. . . My close friends and colleagues in the practice of law who have had the pleasure of working with Judge White over several years have assured me that he is a man of the highest integrity and honor. Judge White understands that the role of a Federal district judge is to interpret the law, not make the law. I have always believed that one of the most important duties I have as a Senator is to evaluate carefully the nominees for the Federal judiciary. I believe Judge White has the necessary qualifications and character traits which are required for this most important job.

Confirmation Hearings on Federal Appointments: Hearings before the Sen. Comm. on the Judiciary, 105th Cong., 2d Sess. 7-8 (1998).

Congressman Clay followed Senator Bond’s introduction with his own remarks, noting that Senator Ashcroft had also confirmed the high regard accorded to Judge White by his colleagues on the Missouri Supreme Court, all of whom were Ashcroft appointees:

    I might cite one incident that attests to the kind of relationship that Judge White has with many, and that is with a member of this committee – Senator Ashcroft. When I recommended Judge White to the President for nomination and the President nominated him, one of the first people that I conferred with was Senator Ashcroft. Senator Ashcroft then said he would get in touch with me at a later date.

    At a later date, he told me that he had appointed six of the seven members to the Missouri Supreme Court. Ronnie White was the only one he had not appointed. He said he had canvassed the other six, the ones that he appointed, and they all spoke very highly of Ronnie White and suggested that he would make an outstanding Federal judge. So I think that is the kind of person we need on the Federal bench.

Id. at 9. Senator Ashcroft, a member of the Judiciary Committee, was present during this Committee hearing and did not contradict Congressman Clay’s report of their conversation in any respect.

Nonetheless, more than two years elapsed between the time that Judge White was nominated and the date when the Senate finally voted on his nomination. Press reports indicated that Senator Ashcroft was responsible for blocking any vote on Judge White’s nomination for this extraordinarily long period of time by placing a hold on the nomination. See, e.g., "Confirm Ronnie White," St. Louis Post-Dispatch (Aug. 11, 1999) (stating that Senator Ashcroft had at that point held Judge White’s nomination in limbo for 776 days). In fact, the St. Louis federal district court seat to which Judge White had been nominated had been vacant so long that the vacancy was declared a judicial emergency by the Administrative Office of the U.S. Federal Courts. Judge White was one of a number of minority and female judicial nominees whose nominations were significantly delayed by the Senate, and for periods of time longer than the delays experienced by President Clinton’s white male nominees. (See also discussion in B. 2., below.)

When Judge White’s nomination finally was brought to the Senate floor in October 1999, Senator Ashcroft spearheaded a successful party-line fight to defeat White’s confirmation, the first time in twelve years (since the vote on Robert Bork) that the full Senate had voted to reject a nominee to the federal bench. In opposing Judge White’s confirmation, Senator Ashcroft used the harshest of language to portray Judge White as soft on crime, stating:

    [u]pon [Judge White’s] nomination I began to undertake a review of his opinions. . . I believe Judge White’s opinions have been and, if confirmed, his opinions on the Federal bench will continue to be procriminal and activist, with a slant toward criminals and defendants against prosecutors. . . [H]e will use his lifetime appointment to push law in a procriminal direction, consistent with his own personal political agenda. . .

145 Cong. Rec. S11872 (daily ed. Oct. 4, 1999) (statement of Sen. Ashcroft).

Senator Ashcroft then went on to characterize Judge White as someone with "a serious bias against a willingness to impose the death penalty." Referring specifically to Judge White’s decisions in death penalty cases, Senator Ashcroft represented to his senatorial colleagues that:

    Judge White has been more liberal on the death penalty during his tenure than any other judge on the Missouri Supreme Court. He has dissented in death penalty cases more than any other judge during his tenure. He has written or joined in three times as many dissents in death penalty cases, and apparently it is unimportant how gruesome or egregious the facts or how clear the evidence of guilt.

Id. Two months earlier, in a commentary written in the St. Louis Post-Dispatch, Senator Ashcroft had launched this line of attack, proclaiming that Judge White was "the most anti-death penalty judge on the Missouri Supreme Court" and that his record was "outside the court’s mainstream." St. Louis Post-Dispatch (Aug. 18, 1999).

In fact, in the press and in the Senate, Ashcroft had grossly distorted and misrepresented Judge White’s decisions in death penalty cases. Judge White had actually voted to uphold the imposition of the death penalty far more often than he had voted to reverse it. According to published reports, Judge White voted to affirm death sentences in 41 out of 59 capital cases that had come before the Missouri Supreme Court during his tenure. Moreover, also according to these reports, in the majority of the cases in which Judge White had voted not to impose the death penalty, he did so unanimously with the other members of the state Supreme Court – including judges who had been appointed by John Ashcroft when he served as the state’s governor. And in two of the six cases in which Judge White wrote the decision for the Court upholding the imposition of the death penalty, he did so over the dissent of judges who had been appointed by Governor Ashcroft. Indeed, three judges appointed by Ashcroft had voted to reverse death penalty sentences a greater percentage of the time than had Judge White.

In his statements on the Senate floor mischaracterizing Judge White as insufficiently committed to the death penalty, Senator Ashcroft specifically pointed to two – of only three – cases in which Judge White was the sole dissenter on the state Supreme Court with respect to imposing the death penalty. In relying specifically on these two cases, not only did Senator Ashcroft fail to provide his colleagues with pertinent information about Judge White’s dissents that would have dispelled the false light in which Ashcroft had placed Judge White, but he also created an ambush. At no time during the Senate’s hearings on Judge White, when Senator Ashcroft questioned him in person in May 1998, or later when Ashcroft submitted written questions to him, did John Ashcroft ever ask Judge White about these two decisions or raise any concern about why he had dissented. Thus, not only was Judge White never given an opportunity by Senator Ashcroft to explain himself, a gross unfairness in and of itself, he was also not given an opportunity to correct Senator Ashcroft’s misleading use of these dissents.

A fair reading of the dissents in these two cases plainly reveals that what was at issue was not Judge White’s willingness to impose the death penalty, but whether, in one case, the defendant’s right to effective assistance of counsel had been violated, and, in the other, whether the trial judge was biased and should have recused himself. Indeed, in the first case, in which the defendant had raised an insanity defense, Judge White expressly stated, "This is a very hard case. If Mr. Johnson [the defendant] was in control of his faculties when he went on this murderous rampage, then he assuredly deserves the death sentence he was given. But the question of what Mr. Johnson’s mental status was on that night is not susceptible of easy answers." Missouri v. Johnson, 968 S.W.2d 123, 138 (Mo. 1998) (White, J., dissenting, emphasis added).

On the Senate floor, Ashcroft also told his colleagues that law enforcement officials in Missouri had "decided to call our attention to Judge White’s record in the criminal law." 145 Cong. Rec. S11872 (daily ed. Oct. 4, 1999) (statement of Sen. Ashcroft). However, after the Senate rejected Judge White’s confirmation, the press reported that Senator Ashcroft had solicited opposition to Judge White from law enforcement officials. See "Law Enforcement’s Opposition to White Was Courted by Ashcroft; Police Group’s President Says it Rejected Senator’s Request to Oppose Judge," St. Louis Post-Dispatch (Oct. 8, 1999). According to this article:

    …the president of one of the state’s biggest police groups, the Missouri Police Chiefs Association, said it had declined a request by Ashcroft’s office to oppose White. . . Carl Wolf, president of the association, said his group received a letter from Ashcroft’s office detailing White’s decisions in death penalty cases. One of Ashcroft’s staffers also called him and asked if the group would work against the nomination. "I just told them we had never taken that type of position before," Wolf said. As a policy, the association does not get involved in judicial nominations, he said. Wolf added that he knows White personally and has never thought of him as "pro-criminal" – a label Ashcroft applied to White’s record. "I really have a hard time seeing that he’s against law enforcement," Wolf said. "I’ve always known him to be an upright, fine individual and his voting record speaks for itself," Wolf said.

Id. In fact, a number of Missouri law enforcement officials and organizations, including the Missouri State Lodge of the Fraternal Order of Police, wrote in support of Judge White.

Senator Ashcroft not only misrepresented Judge White’s willingness to affirm death sentences by blatantly mischaracterizing his decisions, he also ignored the fact that Senator Hatch had specifically questioned Judge White on this very issue during the May 1998 confirmation hearings before the Senate Judiciary Committee, for which Ashcroft was present. At that time, Senator Hatch asked Judge White whether he had "any legal or moral beliefs which would inhibit or prevent [him] from imposing or upholding a death sentence in any criminal case that might come before [him] as a Federal judge." White’s answer was unequivocal:

    Absolutely not, Mr. Chairman. The U.S. Supreme Court has ruled in several cases that the death penalty is constitutional, it doesn’t violate the Eighth Amendment, and as a Supreme Court judge, I have written opinions affirming death sentences and have concurred in many others.

      Confirmation Hearings on Federal Appointments: Hearings before the Sen. Comm. on the Judiciary, 105th Cong., 2d Sess. 16 (1998). When Judge White’s nomination finally reached the Senate floor, Ashcroft prevailed on every one of his Republican colleagues to vote against confirmation.

      Observers at the time noted a number of possible reasons why Senator Ashcroft had so misrepresented Judge White’s record and orchestrated what one newspaper called "a sad judicial mugging." The New York Times (Oct. 8, 1999). Some noted that Senator Ashcroft was facing a highly-contested reelection battle against then-Governor Mel Carnahan (who had appointed Judge White) in which Ashcroft intended to make strong support for the death penalty an important issue. (Gov. Carnahan, at the urging of the Pope, had commuted a death sentence given to a convicted murderer.) It was also reported that Ronnie White’s pro-choice beliefs concerning women’s reproductive freedom, views with which Senator Ashcroft strongly disagreed, may have played a role as well. Indeed, anti-choice forces in Missouri blamed Ronnie White, when he was a state legislator, for effectively killing a bill that would have prohibited all abortions in the state except those necessary to save the woman’s life. Others have charged that Ashcroft’s conduct reflected clear insensitivity to African Americans.

      We cannot judge the reasons why Senator Ashcroft did what he did. What Senator Ashcroft’s actions on the Ronnie White nomination demonstrated, however, was a clear lack of integrity. Ashcroft engaged in a reprehensible and irresponsible distortion of a nominee’s record, he misled the Senate about that record, and he prevented a qualified nominee from being confirmed as a federal judge.

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