Thank you for sharing!

Your article was successfully shared with the contacts you provided.
“I don’t believe him and I don’t trust him,” said Rep. Maxine Waters, D-Calif., outside the hearing room where the attorney general nominee, John Ashcroft, was being grilled last week. “He seems almost like a Clinton Cabinet member,” said Ralph Neas, the executive director of People for the American Way, the left-leaning group that has quarterbacked the effort to derail Ashcroft’s nomination. “That certainly was not the John Ashcroft of his record over the last 20 to 25 years.” Over the course of two days of testimony, the former Republican senator pledged he would not work to overturn Roe v. Wade, would not dismantle Justice Department task forces that investigate violence at abortion clinics, would aggressively enforce the civil rights laws, and would support a continued ban on assault weapons. “You know, Senator, I sit here and listen to the hearing, and my jaw almost drops,” Sen. Charles Schumer, D-N.Y., told Ashcroft. “Senator Ashcroft believes Roe v. Wade is the settled law of the land? Senator Ashcroft believes that the assault weapons ban should be continued? You know, Senator, we fought a lot of these battles in the Senate over the last two years. Where were you when we needed you?” By Thursday, there was little doubt that Ashcroft had said and done almost all the right things to get confirmed. And had done so right out of the box. While there had been talk earlier in the week of a filibuster on Ashcroft’s nomination, led by Sen. Edward Kennedy, D-Mass., it seemed to dissipate almost immediately. Especially after Senate Minority Leader Tom Daschle, D-S.D., said he wouldn’t support such an effort. And, on Thursday, Sen. Orrin Hatch of Utah, ranking Republican of the Senate Judiciary Committee, dismissed the notion. “That’s just the proverbial way senators let you know they’re upset,” Hatch said. Clearly, Ashcroft — with the help of Republicans on the Judiciary Committee –had cleared some hurdles that many hadn’t expected him to leap. The committee is expected to vote on the confirmation this week. “I don’t know if we have a strategy,” said Sen. Jeff Sessions, R-Ala. “We just want to make sure that John got a fair chance to respond to these allegations.” Sessions may deny that a concerted strategy existed, but Ashcroft had help. A lot of it. DRAWING UP THE GAME PLAN Ashcroft was clearly well-prepared for his extended bout with committee Democrats. During his almost 10 hours of questioning last week, he was flanked by a team of advisers who helped navigate Ashcroft through each challenging allegation. His primary counsel was lobbyist Fred McClure, who works for Public Strategies Inc. in Dallas. McClure is a former White House legislative affairs director under President George Bush and a veteran of Capitol Hill confirmation wars. He prepped Supreme Court nominees during the senior Bush administration: Antonin Scalia, David Souter, and, of course, Clarence Thomas. McClure was recruited by the George W. Bush transition team to help Ashcroft through the process. He had never met Ashcroft until after Christmas. The two men began planning for Ashcroft’s hearing in earnest two weeks ago. McClure brought in some high-powered help for the sessions. Former Bush Attorney General William Barr and former Justice Department lawyer Charles Cooper worked with Ashcroft for four days, poring over his record as a Missouri attorney general, a Missouri governor, and a U.S. senator. Also present was St. Louis lawyer Charles Polk, who says he has been friends with Ashcroft for 15 years. There was a lot to plow through. “There were several things in play,” McClure says. “He had an 18-year record as a state official prior to being elected as a U.S. senator. Then, his years of service as a senator. Then, as someone who had run five political campaigns.” Cooper says the group worked for four long days throughout the Martin Luther King Jr. holiday weekend, working until 10 o’clock each evening. “Ashcroft is a very bright man. I had never met him before,” Cooper says. “He has a very exhaustive record in public service. Obviously, that required a lot of effort on our part just to refresh his memory to prepare him for what he would encounter at the hearings.” That Monday, Jan. 15, the group was joined by Kenneth Duberstein, who served as chief of staff to President Ronald Reagan and is now a Washington lobbyist with his own shop. Duberstein could not be reached for comment. Barr declined to comment through a spokesman at Verizon Communications, where Barr is general counsel. McClure says he wouldn’t label the sessions “intensive,” but said instead that they were “freewheeling.” Polk adds that Ashcroft “didn’t need a whole lot of coaching.” The group homed in on Ashcroft’s advisory opinions and court cases undertaken as attorney general and on the political positions he took as governor. Also, Ashcroft had to be re-familiarized with his Senate votes and his work on the Senate Judiciary Committee. (It didn’t always work. On Wednesday, when Ashcroft was asked why he helped delay the confirmation of a Clinton administration judicial nominee, Margaret McKeown, Ashcroft said he didn’t remember her.) “We had to go back a ways to get him to refresh his memory,” McClure says. “Not just what he did, but we had to go for the totality. We had to give him a feel for why he did something.” Throughout the sessions, the group began to identify a single, overarching theme for Ashcroft’s nomination: That Ashcroft had played a variety of roles during his political career. He had been an enforcer of the law as state attorney general. He had been an enactor of the law as a U.S. senator. His role as governor was somewhere in between. Ashcroft had to make explicit to the Judiciary Committee that he understands the difference between the two, and that he couldn’t be the kind of advocate he was in the Senate should he be confirmed as attorney general. Indeed, if there was one phrase Ashcroft repeated again and again during his two days of testimony it was that he “knew the difference between enactment and enforcement.” And that he wouldn’t hesitate to enforce laws with which he personally disagreed. “My primary personal belief is that the law is supreme, and I shouldn’t place myself above the law,” Ashcroft told the Judiciary Committee on Tuesday. There were other, less subtle perhaps, strategic touches. Ashcroft, who had been “kept quiet” by McClure as the storm of controversy built around him, finally was released from his cage. He invited a TV crew into his home on Monday, the day before the hearings. And on Tuesday, his wife, Janet Ashcroft, went on ABC’s “Good Morning America” to talk about her husband. McClure says opening up to the press was the Ashcrofts’ idea, not his. But he didn’t object. PUTTING IT TO WORK Ashcroft’s opening statement was designed as a wide-ranging response to the attacks coming from progressive and pro-choice advocacy groups. Polk says that Ashcroft wrote most of it himself. In the statement, Ashcroft told the panel that he would protect the rights of women to seek “constitutionally protected health services,” that he would enforce the Violence Against Women Act, and that “no part of the Department of Justice was more important than the Civil Rights Division.” He also began to hammer away at the themes that had been developed during his preparation sessions. He talked about how, against his own principles, he applied the law as Missouri attorney general in situations involving abortion and the distribution of religious literature on school grounds. And how he accepted Roe v. Wade as the “settled law of the land.” During his testimony, Ashcroft stayed calm and deferential to the Judiciary Committee — even in the face of blistering criticism from Kennedy and Schumer. Polk said that Ashcroft’s display of grace under fire was his “proudest moment,” adding, “They kept pushing him and egging him on. It seems like folks wanted him to lose his temper. He kept his composure.” On Wednesday morning, it seemed that Ashcroft’s vessel was taking on some water. Kennedy repeatedly had the nominee on the ropes over conflicting testimony Ashcroft was giving concerning Missouri’s role in St. Louis’ 20-year court battle to desegregate its school system. Sen. Richard Durbin, D-Ill., was battering him over his treatment of Missouri Supreme Court Justice Ronnie White, whose bid to become a federal judge was torpedoed by Ashcroft. And Sen. Joseph Biden, D-Del., was assailing him for his comments to a magazine that embraces the Southern Confederate legacy. But at one point late in the afternoon, in the face of a renewed attack from Kennedy over his positions on abortion, Ashcroft became more assertive than at any point during the hearings. Asking the panel not to interrupt him, he said: “I did things to refine the law when I had an enactment role, which is the job of a governor when he signs things into the law. I don’t think it’s subverting the Constitution for a governor to sign a change in the law. I don’t think it’s a breaking of his oath.” It was a moment that encapsulated everything Ashcroft’s team was trying to get across. “I think it was one of the turning points,” McClure says. Ashcroft appeared to have weathered the storm. Soon, his testimony was over. Democrats privately began to talk about the confirmation as certain. And Ashcroft grew one step closer to taking over the Justice Department. Editor-at-large Jonathan Groner contributed to this report.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.