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Ashcroft Hearings: Sen. Feingold Questions Attorney General Nominee

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

DARYN KAGAN, CNN ANCHOR: Keeping our eye on three different confirmation hearing currently taking place in Washington, D.C. At the top left of your screen, John Ashcroft. He today is before the Senate Judiciary Committee as nominee for the next attorney general. Colin Powell to the right of your screen making his case to be the next secretary of state of the U.S. And Christie Whitman, lower left. That is the Environment and Public Works Committee of the Senate. The governor of New Jersey trying to become the next head of the EPA.

Helping us with our coverage today is our Jeanne Meserve.

Jeanne, by watching this three-way right here, it looks like the Ashcroft break is just getting back to action. They took about a five-minute break there.

JEANNE MESERVE, CNN ANCHOR: That's right. And we'll be having more of the senators quiz Mr. Ashcroft as Democrats try their best to point out what they view as the conservative nature of his record and Republicans do their best to defend him. Very much a partisan squabble here over this man, who, as we've mentioned, is opposed by many of the liberal interest groups in this country, some of them with massive grassroots organizations which they have mobilized in an effort to defeat him. This definitely the hearing that's creating the most fireworks today.

Christie Whitman up to be head of the Environmental Protection Agency. She spelled out her philosophy of where she saw the department going under the Bush administration, indicating that there would be more leeway given to states and localities to enforce environmental laws, but there would be federal backup, that they'd try to use a carrot to get people to comply with environmental regulations, but the stick would not be completely put away. You can be sure that she's being quizzed quite carefully about that philosophy, what it will mean for the U.S. environment; also about her record as governor of New Jersey.

Right now we're going to go back to the Senate Judiciary Committee where the questioning of John Ashcroft is about to resume.

(JOINED IN PROGRESS)

SEN. RUSSELL FEINGOLD (D), WISCONSIN: Thank you, Mr. Chairman. Senator Ashcroft, we worked together well and cooperatively on the Constitution Subcommittee of this committee, and I can't help but say, after the exchange earlier, that I'll miss working with you on that subcommittee. But I am relieved that you will not have a vote on those constitutional amendments anymore, because we had a very strong disagreement on that, but it was a very polite disagreement.

I'd like to spend my time in this round talking primarily about judicial nominations and civil rights.

And, first, on judicial nominations -- I've said this to you before -- I think the actions of the this committee with respect to the judicial nominations of President Clinton were inappropriate. I believe the committee acted inappropriately in allowing nominations to languish for months and years without even a hearing. It seemed, as I've said before, that some didn't even accept the results of the 1996 presidential election. I think a terrible wrong was done to qualified judges and lawyers, like Bonnie Campbell and Helene White and Kathleen McRee Lewis.

Senator Ashcroft, one person whose nomination was never acted upon in the last Congress is Roger Gregory, a lawyer from Richmond, Virginia. President Clinton nominated Mr. Gregory for the Fourth Circuit Court of Appeals, and I know that you're familiar with that because we did discuss it in our meeting.

Last month, President Clinton appointed Mr. Gregory to fill that Fourth Circuit position during the congressional recess, and, under this recess appointment, Judge Gregory will serve until the end of this congressional session unless he is confirmed by the Senate, in which case, of course, he would be on the bench for life.

He has therefore become the first African-American to serve on the Fourth Circuit in history. And, Senator Ashcroft, recess appointments have been used in the past to integrate the federal bench. A. Leon Higginbotham and Spotswood Robinson, the first African-Americans to sit on the Third and D.C. circuits, respectively, were both recess appointments by President Johnson in 1964. And President Kennedy used the recess appointment power to make Thurgood Marshall the first African-American judge on the Second Circuit in 1961. All of these appointments were ultimately confirmed to full life terms.

Senator Ashcroft, do you see a problem with the circumstances that, in the year 2001, there is not a single African-American who has ever been confirmed for a life-time appointment to the court of appeals for the Fourth Circuit?

JOHN ASHCROFT, ATTORNEY GENERAL NOMINEE: Senator Feingold, I believe that we should try to get the best-qualified individuals available for judicial positions, and that we should try make sure that our judiciary reflects the kind of population that we have in the country. It's important to do.

When I was governor of the state of Missouri, I took special care to try and make sure that we appointed individuals who hadn't previously had access to judicial positions. That's why I appointed the first two women to the Court of Appeals benches in Missouri -- the first black to the Western District Court of Appeals, the first woman to the Supreme Court -- and why I set a record in appointments during my time as governor for appointing African-Americans to the bench.

I think it is important that we have individuals and I think there are high-quality individuals representing every quadrant of our culture, and I want to make my understanding and firm belief in that clear. And I would hope that we would have a capacity to see in virtually every aspect of our judicial system -- in every aspect -- scratch the word virtually -- the kind of racial diversity which makes up America.

So I don't see any problem in -- maybe I've forgotten the question -- I would welcome -- I would like to see greater diversity in settings like that.

FEINGOLD: Given your record as you've described it, surely the fact that there has never been an African-American in the Fourth Circuit, which I understand is the largest percentage of any circuit in the country, would trouble you. So I would specifically ask you, to the extent you will be involved, will you support Roger Gregory's nomination and press for confirmation by the Senate so he can serve for life as do the other judges on the circuit? And, therefore, would you recommend that President Bush not withdraw the nomination?

ASHCROFT: When the president of the United States announced his designation of me as the next attorney general, he indicated to me he expected me to give him legal advice in private and to give it to him. I owe him that respect and that honor.

I think I can say to you that the kind of advice I will give him is likely to be reflected in the kind of effort that I've made when I've had appointing authority. And if the president of the United States chooses to send that name forward for nomination, I will enthusiastically work to make sure that confirmation is achieved.

FEINGOLD: Thank you, Senator. I have high hopes for that one.

And now I'd like to turn to the federal death penalty and the broader subject of the death penalty. President-elect Bush supports the use of capital punishment, as I understand you do. While a majority of Americans continue to support the death penalty, a majority of Americans are also increasingly alarmed by the lack of fairness and reliability in the administration of this ultimate punishment. The system is prone to errors.

For example, since the 1970s, our nation has sent -- at last count -- 93 people to death row who are later found to be innocent.

Senator, do you acknowledge that our justice system has made mistakes and that innocent people have been convicted and even sentenced to death?

ASHCROFT: I acknowledge that individuals have been sentenced to death and have been convicted whose convictions have been overturned, and their convictions and sentences were inappropriate when made.

FEINGOLD: Thank you. And then, let me follow that by indicating, as you well know, on December 22, 2000, at the press conference announcing your nomination to be attorney general, you and President-elect Bush were asked a question about the federal death penalty system and whether a moratorium on executions is warranted at the federal level. And I was relatively pleased with President-elect Bush's measured response. He says he supports the death penalty when it's administered fairly, justly and surely.

And in that regard, I would ask if you agree with President Clinton that the gravity and finality of the death penalty demand that we be certain that, when it is imposed, it is imposed fairly?

ASHCROFT: I think it is a very serious responsibility, and it should be only after a very reliable process of integrity has been undertaken. When I served as governor of the state of Missouri, I had a rather awesome responsibility, when the death penalty was reinstituted in my state, of being the last evaluator of the fairness and integrity of the system.

Having sat in that setting and having felt that responsibility, I take very seriously doing what we can to make sure that we have thorough integrity and validity in the judgments we reach.

FEINGOLD: Well, in light of that answer, I will ask if you will support the effort of the National Institute of Justice that is already under way to undertake the study of racial and geographic disparities in the administration of the federal death penalty that President Clinton deemed necessary.

ASHCROFT: Yes.

FEINGOLD: Thank you for that.

Will you continue and support all efforts initiated by Attorney General Reno's Justice Department to undertake a thorough review and analysis of the federal death penalty system?

ASHCROFT: I thought that's what you were referring to in the first instance, but the studies that are under way, I'm grateful for them. When the material from those studies comes, I will examine them carefully and eagerly to see if there are ways for us to improve the administration of justice. I have absolutely no reason, in any respect, to think that we want to turn our backs on a capacity to elevate the integrity of our judicial system, especially in criminal matters, and most importantly in matters that are capital in nature.

FEINGOLD: So those studies will not be terminated?

ASHCROFT: I have no intention of terminating those studies.

FEINGOLD: Thank you, Senator.

Now, let me turn to a third area that you and I have discussed on a number of occasions, the issues of racial profiling. At the hearing on this bill last year, I was very pleased to hear you say that you believe the practice of racial profiling is unconstitutional, and I believe you've repeated that several times this week. You also said that we need to find out how big the issue is and that this bill -- the one that I sponsored with Senator Lautenberg -- represented a good start. You said that with some suggested changes you could support the bill. And we had some discussions following that hearing in which we talked about your changes, and frankly we agreed to your changes, but in the end you never joined as a cosponsor of the bill. But here we are today.

If confirmed as attorney general, would you support this bill and encourage its passage in the House and Senate?

ASHCROFT: First of all, I want to commend you for your work in this respect. The hearing which you assembled was my hearing, I was the chairman, and you came to me and asked me if I wanted to address this serious issue and I said, "Please, you move forward to do it. You know the territory." It was the first hearing, I believe, in the United States Senate on this practice. And not only were you there, but Senator Kennedy participated, Senator Torricelli was present. I stated at the hearing that I think racial profiling is wrong. I think it's unconstitutional. I think it violates the 14th Amendment. I think most of the men and women in our law enforcement are good people trying to enforce the law.

I think we all share that view.

But we owe it to provide them with guidance to ensure that racial profiling does not happen. I look forward to working together with you to try to find a way to do that.

The president-elect of the United States -- unless I heard him incorrectly in one of the debates that I was watching -- said very clearly that he rejected the idea that people would be dealt with on the basis of their race. In my current position, I can't endorse any specific legislation, but I worked with you and you know that I felt good about what you were doing and that, frankly, I talked to you about specific items. I believe that I suggested some ways that the bill could be improved, clarifying that the study is compiled from materials voluntarily collected, which I understand is the intent of the bill.

FEINGOLD: Absolutely.

ASHCROFT: Expanding the kind of data that the attorney general reviews and clarifying that nothing in the bill changes any burdens of proof for parties in litigation...

FEINGOLD: In light of those points, which we certainly agreed to, would you support this legislation?

ASHCROFT: Those were the kinds that I personally thought were appropriate and would have made the bill, if in fact they finally got done. My recollection is not clear. I don't know how I can more clearly say to you that this is a matter that troubles me. There was an indelible moment in the hearing, as a matter of fact. And it wasn't the sergeant that came; it was the videotape of his son. He had the sergeant who was taking his son across one of our states stopped twice. And I certainly agree with that.

FEINGOLD: Let me just repeat though, because I think you're going as far as you can to say you'll support this bill; Senator Kennedy said at the hearing, this bill couldn't possibly be more modest. All it is about is collecting data. If there is any seriousness on your part or the part of the president-elect about racial profiling, this is a very easy bill to support. I again have high hopes.

As attorney general, what other steps would you take to eliminate racial profiling?

ASHCROFT: Well, as it relates to enforcement by the Department of Justice, I would do my best never to allow a person to suffer solely on the basis of a person's race. As you well know, there are responsibilities for enforcement that are intended to the Justice Department. While we have talked about responsibilities of state and local law enforcement officials, it is important that the federal government be leading when it comes to respecting the rights of individuals and the Constitution. I will do everything I can to make sure that we lead properly in that respect.

FEINGOLD: Will you make racial profiling a priority of yours?

ASHCROFT: I will make racial profiling a priority of mine.

FEINGOLD: Switching to another area, should a law...

KAGAN: We've been listening to the confirmation hearing of John Ashcroft as attorney general as he appears before the Senate Judiciary Committee, currently being questioned by Sen. Russ Feingold of Wisconsin. A lot of confirmation hearings taking place today. We've been watching three of them, including Christie Whitman as head of the EPA, and also Colin Powell as the future secretary of state, confirmation hearings. Also taking place today, Mel Martinez, up for confirmation as the head of Housing and Urban Development; and Paul O'Neill, to lead the Department of Treasury.

It's been an important morning. We've had help from my partner Leon Harris, and also from Jeanne Meserve in Washington.

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