Statement Of Senator Patrick Leahy,
Chairman, Senate Committee On The Judiciary
Hearings On The Nomination Of John Ashcroft To The Office
Of Attorney General
January 16, 2001
It is a privilege to call these important hearings to order. I welcome Senator Hatch and all our continuing Members on both sides of the aisle. We are being rejoined this year by Senator Durbin, and joined by Senator McConnell, Senator Brownback and Senator Cantwell. I look forward to working together with all of you. On behalf of the Committee, I also welcome Senator Ashcroft and his family here today as we begin hearings on his nomination to be Attorney General of the United States.
The Importance of the Position of Attorney General.
The position of Attorney General is of extraordinary importance, and the judgment of the person who serves as Attorney General affects the lives of all Americans. The Attorney General is the lawyer for all the people and the chief law enforcement officer in the country. Thus, the Attorney General not only needs the full confidence of the President, he or she needs the confidence and trust of the American people. All Americans need to feel that the Attorney General is looking out for them and protecting their rights.
The Attorney General is not just a ceremonial position. Rather he or she controls a budget of over $20 billion and directs the activities of more than 123,000 attorneys, investigators, Border Patrol agents, deputy marshals, correctional officers and other employees in over 2,700 Justice Department facilities around the country and in over 120 foreign cities. Specifically, 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, 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 argument to make to the Supreme Court, other federal courts and State courts on behalf of the United States Government. The Attorney General distributes billions of dollars a year in law enforcement assistance to State and local government and coordinates task forces on important law enforcement priorities. There is no appointed position within the Federal Government that can affect more lives in more ways than the Attorney General. We all have a stake in who serves in this uniquely powerful position and how that power is exercised.
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, to free speech, to freedom from government oppression; and to safeguard our marketplace from predatory and monopolistic activities, and safeguard our air, water and environment.
As I said at the confirmation hearings for Edwin Meese to be Attorney General, "[w]hile the Supreme Court has the last word on what our laws mean, the Attorney General has often more importantly the first word."
Our current Attorney General, Janet Reno, has helped us all make unprecedented strides in combating violent crime, protecting women's rights, protecting crime victims rights and reducing violence against women. The nation's serious crime rate has declined for an unprecedented eight straight years. Murder rates have fallen to their lowest levels in three decades and since 1994 violent crimes by juveniles and the juvenile arrest rates for serious crimes have also declined. Our outgoing Attorney General must be commended for greatly improving the effectiveness of our law enforcement coordination efforts, federal law enforcement assistance efforts and for extending the reach of those efforts into rural areas. Her success shows what can be achieved and reemphasizes how important the position of Attorney General is to all Americans.
In addition, the Attorney General has come to personify fairness and justice to people all across the United States. Over the past 50 years, Attorneys General like William Rogers and Robert Kennedy helped lead the effort against racial discrimination and the fight for equal opportunity.
In terms of addressing the issues that have divided our country, bringing our people together and inspiring people's confidence in our government, the Attorney General plays a critical role.
This hearing is not about whether we like Senator John Ashcroft or call him a friend, which many of us do; not about whether we agree or disagree with him on every issue, since many of us have worked productively with him on selected matters and disagreed with him on others; and certainly not about whether Senator Ashcroft is racist, anti-Catholic or anti-Mormon -- those of us who have worked with him in the Senate do not make that charge.
What is an important question for the Senate is whether a nominee who has taken aggressively activist positions on a number of issues on which the American people feel strongly and on which they are deeply divided can unite all Americans and have their full trust and confidence. In the days following the announcement of the President-elect's intention to nominate John Ashcroft, many people from different communities and points of view have expressed their concerns with or support for this selection for Attorney General. The President-elect says that his choice is based on finding someone who will enforce the law, but all must concede that this is a highly controversial choice.
The recent presidential election, the margin of victory and the way in which the vote counting in Florida was ordered to stop through the intervention of the United States Supreme Court remain a source of public concern. Deep divisions within our country have infected the body politic over the last several years as matters became increasingly partisan. This Committee and the way it conducts itself can help heal those wounds and help begin to restore confidence in our government.
These hearings provide the nominee with the opportunity to make his case why he should be approved by the Senate as the Attorney General of the United States, to convince the great number of Americans who view this selection with scepticism that they should have confidence in him and trust him, and to respond to his critics. I have met with Senator Hatch and strived to work with him to ensure that these hearings will be full, fair and informative. They provide an important opportunity for the American people, through their elected representatives, to ask the nominee about fundamental issues and the direction of federal law enforcement and constitutional policy that affect all of our lives. They provide an opportunity for members of the public to speak directly to us about their concerns and their support for this nomination. At a time of political frustration and division, it is important for the Senate to listen. 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. Just as when the American people vote, every vote is important and should be counted so, too, when we hold hearings we ought to do our best to take competing views into account.
This is an Historic Time.
We live in an historic time. During the last few years the country and the Congress have experienced events without precedent or without precedent for over 100 years. We saw the House of Representatives impeach a popularly-elected President for the first time in our history. The Senate conducted an impeachment trial for only the second time in history and a bipartisan majority voted not to convict and not to remove the President from office.
We have witnessed 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 based on electoral votes.
The Senate, for the first time in our history, is made up of 50 Democrats and 50 Republicans and this Committee, for the first time in its history, will be composed of equal numbers of Democrats and Republicans. On Saturday, Senator Hatch will again become Chairman of this Committee. Accordingly, the Committee begins its consideration of this nomination under a Democratic Chairman and will conclude it under a Republican Chairman.
Over the last 200 years the confirmation process has evolved. The first Congress established the office of the Attorney General in 1789 but confirmations were handled by the full Senate or special committees. It was not until 1816 that the Senate established the Judiciary Committee as one of the earliest standing Committees, chaired initially by Senator Dudley Chase of Vermont. It was not until 1868 that the Senate began regularly referring nominations for Attorney General to this Committee. In the 26 years that I have been privileged to serve in the United States Senate, these confirmation hearings have become an increasingly important part of the work of the Committee.
Of the 15 cabinet nominees not to be confirmed over time, nine were rejected by the Senate after a floor vote. Of those, one was a former Senator, John Tower, in 1989. Two were nominees to serve as Attorney General. One of those rejected Attorney General nominees was Charles Warren, an ultraconservative Detroit lawyer and politician nominated by President Coolidge who was voted down by a Senate controlled by the President's own party due to concern that Warren's prior associations raised questions about his suitability to be Attorney General.
"Progressive Republicans, recalling that Warren had aided the sugar trust in extending its monopolistic control over that industry believed this appointment was a further example of the President's policy of turning over government regulatory agencies to individuals sympathetic to the interest they were charged with regulating. . . . [T]he progressive Republicans combined with the Democrats in March 1925 to defeat the nomination narrowly. . . . The President then nominated an obscure Vermont lawyer, whom the Senate immediately confirmed." Richard Allen Baker, "Legislative Power Over Appointments and Confirmations," Encyclopedia of the American Legislative System, at p.1616.
After the Senate rejected the nomination of Charles Warren, President Coolidge nominated John Sargent, a distinguished lawyer from Ludlow, and the only Vermonter ever to serve as the Attorney General of the United States.
Of the nine Senators who have previously been Attorneys General, seven were serving in the Senate and resigned in order to become the nation's top law enforcement officer. Indeed, it has been more than 30 years since a Senator was nominated to be Attorney General. Senator William Saxbe of Ohio resigned his Senate seat in 1974 to pick up the reins of the Justice Department in the aftermath of Watergate, at a time that saw two prior Attorneys General indicted toward the end of the Nixon Administration.
There was a time, of course, when "senatorial courtesy" meant that Senators nominated to important government positions did not appear before Committees for hearings. I am sure all Senators and the nominee agree that no one nominated to be Attorney General should be treated specially just because he once served in the Senate. I am confident that, as a former member of this Committee, the nominee understands that our constitutional duty rather than any friendship for him must guide us in the course of these proceedings. I expect this Committee and the Senate to be courteous to all nominees and, for that matter, all witnesses and all people. The fact that many of us served with Senator Ashcroft and know Senator Ashcroft and like John Ashcroft does not mean that the Committee and the Senate will not faithfully carry out its constitutional responsibility with regard to this nomination.
The Task at Hand.
Fundamentally, the question before us is whether Senator Ashcroft is the right person for the critical position of Attorney General of the United States at this time. The Appointments Clause of the Constitution gives the Senate the duty and responsibility of providing its advise and consent. The Constitution is silent on the standard that Senators should use in exercising this responsibility. This leaves to each Senator the task of figuring out what standard to apply and, most significantly, leaves to the American people the ultimate decision whether they approve of how a Senator has fulfilled this constitutional duty.
Many of us believe that the President has a right to appoint to executive branch positions those men and women whom he believes will help carry out his agenda and policies. Yet, the President is not the sole voice in selecting and appointing officers of the United States. The Senate has an important role in this process. It is advise and consent, not advise and rubberstamp. As we begin a new Administration, the extensive authority and important role of the Attorney General, the need for the Attorney General to have the trust and confidence of all the people, and the controversial positions taken by the President-elect's nominee, require us to consider whether this nominee is the right person for the critical position of Attorney General of the United States at this time in our history.
Over the last several years, Republican have made much of the Senate's "advice and consent" power and used objections, secret holds and narrow ideological considerations in blocking and voting against presidential nominees. Among the areas we will explore with Senator Ashcroft is how he fulfilled his constitutional duty as a Senator in exercising his advise and consent authority in connection with executive and judicial nominations. We will explore the standards he would use in making recommendations to the President on executive and judicial appointments if confirmed as Attorney General.
We will also want him to explain any differences he sees in the role of the Attorney General and positions he has previously held and how that different role will affect his actions, policies, priorities, and positions. And we will explore how Senator Ashcroft would exercise the awesome power of the Attorney General and administer the programs and laws that Congress has enacted.
While urging rigorous senatorial scrutiny of cabinet nominations, scholars explain:
"A lack of interest by an administrator or overt hostility to a legislative program can eviscerate the policies that Congress has taken pains to announce as national goals. Administrators so disposed can shatter agency morale and create uncertainty for career personnel, who may not know whether they are supposed to implement or sabotage the statutory objectives." William G. Ross, The Senate's Constitutional Role In Confirming Cabinet Nominees and Other Executive Offices, 48 Syracuse Law Review 1123, 1150 (1998).
I have been a prosecutor and I know what it means to exercise prosecutorial discretion, with the result that some laws get enforced more aggressively than others, some missions receive priority attention and some do not. No prosecutor's office - unless you are an independent counsel - has the resources to investigate every lead and prosecute every infraction. A prosecutor may choose to enforce those laws that promote a narrow agenda or ones that protect people's lives and neighborhoods. An inquiry into Senator Ashcroft's actions as a State Attorney General, Governor and as a Senator may provide a window on how he might choose to exercise his prosecutorial discretion.
The American people will want to know not just whether he will enforce the laws on the books today, but also what changes he will seek and what positions he will take before the Supreme Court in defining the constitutional rights that all Americans currently enjoy. In particular, the American people will want to know whether he will urge the Supreme Court to overturn Roe v. Wade or impose more burdensome restrictions on a woman's exercise of her right to choose or ability to secure legal, safe contraceptives.
Moreover, the Attorney General plays an important role in selecting a President's nominees to the federal judiciary. The President-elect has said he will not use a litmus test on abortion for his judicial appointments, but will the Attorney General only recommend to him those candidates who share Senator Ashcroft's opposition to abortion, even in cases of incest and rape?
The Committee will want to know what changes he will seek in the laws in this country, both at the federal level and at the state level, through federal mandates. For example, during the debate on the Hatch-Leahy juvenile justice bill in May 1999, Senator Ashcroft offered an amendment to require states, before they would be eligible for federal juvenile grant funds, to prosecute as adults juveniles older than 13 years who used or possessed a gun in the commission of certain violent crimes. That amendment was voted down when it became clear that almost forty-eight states would lose their eligibility for federal grant funds.
We are proceeding expeditiously with these hearings, as requested by President-Elect Bush,
with bipartisan agreement to do so even before we have received a complete FBI background report or Senator Ashcroft's complete response to the Committee questionnaire for this nomination. We will not and should not move forward to consider this important nomination until we have received these documents and have had a reasonable opportunity to review them. Indeed, should any questions be prompted by review of those documents, we may decide that further hearing is necessary before we report the nomination -- and I will be glad to confer with the next Chairman of this Committee about that eventuality should it arise.
I have said from the outset that these hearings must be thorough and fair. The President-Elect and his nominee have said that they expect tough questioning and that the nominee is prepared to answer. We would ill serve the American people if, as has happened on occasion, we became distracted with what has be to be called the politics of personal destruction. On the other hand, we would be neglecting our sworn duties to the American people if we did not ask questions to determine what kind of Attorney General the nominee would likely be.
I would like to review some housekeeping matters and outline the procedures I intend to follow through the hearing. We will try to be balanced and fair with respect to time. We will start by according each Senator an opportunity for brief opening remarks. Thereafter, we will turn to the nominee for any opening remarks that he would like to make. Following the opening statement of Senator Ashcroft, Senators will have the opportunity to question the nominee for 15 minutes each. After the completion of the first round of questions we will continue with a second, shorter round and so on until we have concluded the initial questioning of the nominee. We will then turn to other witnesses for statements and their responses to questions from Members of the Committee. With the cooperation of Senator Hatch, I expect that we will be able to provide a final witness list shortly. Throughout the process we will try to keep the nominee, witnesses and the public advised of the schedule.
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