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It looks good, it sounds good: Liberal advocacy groups arming for war, talking tough and taking aim at John Ashcroft, the Republican nominee for attorney general, hoping to “Bork” him back to Missouri. But with Ashcroft’s confirmation hearing coming as soon as next week, these groups are scrambling to come up with something stronger than the hand they’re holding. “There is really, really nothing there,” says Clint Bolick, litigation director of the conservative-leaning Institute for Justice. “I think this is more about symbolism than substance.” Advocacy groups are combing Ashcroft’s record both as a senator and as the Missouri governor and attorney general, looking to identify positions and statements that would show that Ashcroft is unfit for the office. But a review of Ashcroft’s Senate record doesn’t appear to provide the kind of ammunition that would pose a serious risk to Ashcroft’s confirmation — at least where judicial nominations are concerned. While he hasn’t been shy about attacking judges who don’t comport with his conservative beliefs, his record doesn’t seem to betray the sort of animus that might jeopardize Ashcroft’s chances. Because of that, critics will remain focused on Ashcroft’s 1999 torpedoing of Ronnie White, an African-American Missouri Supreme Court justice, whom President Bill Clinton nominated to the federal bench. Indeed, Ashcroft’s hostility to White is the primary weapon in the anti-Ashcroft campaign of groups like People for the American Way and the Alliance for Justice — both of which played major roles in defeating the nomination of Robert Bork to the U.S. Supreme Court in 1987. And while some African-American advocacy groups have come out against Ashcroft by charging that he is a racist, other groups won’t go that far. “Our problem is that he basically slandered a qualified person and he did so for political gain,” says Elaine Weiss, law fellow for the Alliance for Justice. Ashcroft’s posture toward judicial nominations has a newfound relevance. During the Clinton administration, the nomination of federal judges was directed mainly by the White House, with the Justice Department playing a secondary role. But that is likely to change in the Bush presidency. In the Reagan and Bush administrations, selection of judges was handled in large measure by the Justice Department’s Office of Legal Counsel. And that is likely to again occur under George W. Bush. But the problem for the groups united in opposition to Ashcroft is that his record on judicial nominations is decidedly mixed and not especially challengeable. Ashcroft participated in 47 roll call votes on prospective federal judges during his single Senate term. He supported about 75 percent of the nominees sent to the Senate by the Clinton White House, voting for 35 of them. Of the 35 judges whom Ashcroft supported, 19 of them were white males; 16 were women or minorities. Ashcroft voted to confirm four black judges, three Hispanic judges, and nine women judges. Yet Ashcroft did vote against women and minority judges at a slightly higher rate than he did for white male candidates with whom he disagreed. He turned thumbs down to eight women and minority candidates, while objecting to only four white males. “Ashcroft opposed lots of nominees because he believed them to be liberal,” Bolick says, “not because of their skin color.” There is no contesting that Ashcroft was a major thorn in the side of the Clinton administration’s attempt to put judges on the bench. Along with such other conservatives on the Senate Judiciary Committee as Jeff Sessions, R-Ala., and Bob Smith, R-N.H., Ashcroft could be counted on to air his grievances about particular candidates, even if he eventually allowed them out of committee. Only a handful of nominees drew his fierce opposition. White was the most notable. Then-Sen. Ashcroft mounted what some called a smear campaign against White, who was tapped by President Clinton in 1999 to serve on the U.S. District Court for the Eastern District of Missouri. White’s supporters claimed Ashcroft intentionally distorted the judge’s record — in part to aid his Senate re-election effort. Ashcroft, for instance, labeled White as “anti-death penalty” and “soft on crime” even though statistics showed White voted while on the Missouri Supreme Court to uphold a death sentence 71 percent of the time. Ashcroft also focused on White’s vote to overturn the death sentence of a man convicted of killing three police officers. White lost a Senate vote after several Republicans, including Christopher Bond, the senior senator from White’s home state, abandoned their support. Because White is African-American, some have claimed Ashcroft’s motives were racist. But Elliot Mincberg, vice president of People for the American Way, says that the incident speaks to Ashcroft’s willingness to damage White’s reputation for his own political benefit. “Ronnie White does say something about Sen. Ashcroft’s integrity,” he says. Ashcroft’s supporters, however, see nothing wrong with his opposition to White. “I think the burden is on the liberal groups to justify to senators voting for a judge who let a multiple cop-killer off the hook,” says Tom Jipping, head of the Free Congress Foundation’s Judicial Selection Monitoring Project. “It is simply a lie that John Ashcroft or any other senator voted against Ronnie White because of his race.” White is expected to be called to testify at Ashcroft’s confirmation hearing. Ashcroft was also heavily criticized for his denouncement of Margaret Morrow, now a federal district judge in Los Angeles. Morrow was a Los Angeles corporate lawyer, Arnold & Porter partner, and former California Bar Association president who received passing grades from mainstream Republicans. That didn’t stop Ashcroft from labeling her a “judicial activist” in 1997 and trying to scuttle her nomination. At the time, Ashcroft said that Morrow “promises to be just another activist judge who is ready, willing, and able to set aside the judgment of the people on issues such as term limits, racial preferences, or denial of benefits to illegal aliens.” Eventually, Sen. Orrin Hatch, R-Utah, the Judiciary Committee chairman and a fellow Republican who is actively supporting Ashcroft in his bid to become attorney general, had to point out Morrow’s qualifications on the floor of the Senate. She was ultimately confirmed by a 67-28 vote. Ashcroft was also part of a group of Republicans who in 1998 hammered away at the effort of Philadelphia Common Pleas Court Judge Frederica Massiah-Jackson to become the first African-American judge in the Eastern District of Pennsylvania. Ashcroft called Massiah-Jackson a “hug-a-thug” judge who was anti-police. She also drew his wrath for cursing in open court in 1985 when she told a prosecutor to “shut your [expletive] mouth.” “There can be no excuse for Senate approval of a judge who fails to understand the proper limits of judicial power or whose conduct is an embarrassment to judicial office,” Ashcroft said of the judge. Clinton eventually withdrew the nomination. Ashcroft also opposed the nomination of M. Margaret McKeown to the 9th U.S. Circuit Court of Appeals, helping to stall her candidacy for two years. McKeown was eventually confirmed in 1998. And Ashcroft didn’t hide his distaste for Clinton appointee William Fletcher to the 9th Circuit, only agreeing to back off when Clinton, as part of a deal with Senate leaders, agreed to appoint a conservative judge, Barbara Durham, to the court as well. Later, Durham declined the nomination for personal reasons. Ashcroft was one of 29 senators to vote against Sonia Sotomayor for the 2nd Circuit and campaigned against the nomination of Susan Oki Mollway, who was bidding to become the first Asian-American judge on the federal bench in Hawaii. Ashcroft also blocked the nomination of a Missouri lawyer, Alex Bartlett, in 1995. Bartlett, a partner in a Jefferson City law firm, deposed Ashcroft in a lawsuit against the state of Missouri in 1983, when Ashcroft was state attorney general. Bartlett never had a Judiciary Committee hearing. Jipping acknowledges that Ashcroft has “voted against more nominees than other senators.” But he adds that Ashcroft “is a man of the highest personal integrity.” And Bolick says that Ashcroft had a right to object to judges with whom he philosophically disagreed. “The Senate is not immune from First Amendment protection,” he says. SWIMMING UPSTREAM Because there isn’t much room to attack Ashcroft’s record on judicial nominations, advocacy groups are going to have to take a broader tack. Part of it involves portraying Ashcroft as “someone who is out of the mainstream,” Mincberg says. His organization primarily cites Ashcroft’s uncompromising anti-abortion stance, warning that Ashcroft may be unable to enforce abortion clinic protection laws. But the group also points to Ashcroft’s opposition to the appointment of U.S. Surgeon General David Satcher in 1998. Ashcroft called Satcher “someone who is indifferent to infanticide.” Ashcroft was also a leader in blocking the confirmation of Justice Department civil rights chief Bill Lann Lee, as well as the confirmation of James Hormel, who is openly gay, as ambassador to Luxembourg. Ashcroft teamed with Sen. Jesse Helms, R-N.C., to keep Hormel from a vote in 1998. Ashcroft also has a long record of harshly criticizing judges and court rulings with which he has disagreed. In 1997, as chair of the Judiciary Subcommittee on the Constitution, he held a series of hearings on “judicial activism.” “We are looking at his attacks on judicial independence,” says the Alliance for Justice’s Elaine Weiss. Ashcroft has referred to “renegade judges” as a “robed, contemptuous intellectual elite.” “The costs of judicial activism are terrible and real,” he said in 1997. He took issue with a judge in Oregon who struck down a ballot initiative that provided for a right to doctor-assisted suicide. Ashcroft called the initiative a “terrible idea,” but said he didn’t think the judge should have “displaced the will of the people.” Missouri federal Judge Russell Clark also drew Ashcroft’s wrath when Clark ordered a tax increase to fund school desegregation in Kansas City. “Now, if the power of the judiciary includes the uniquely legislative power to tax, one wonders if there is anything it does not include,” Ashcroft said. Even with that record of unrelenting criticism of favored Democratic Party people and positions, it appears Ashcroft will find safe passage through confirmation — even if it is not a particularly smooth ride. Senate Democrats haven’t publicly opposed Ashcroft’s nomination. And two prominent Democrats on the Judiciary Committee, Russell Feingold of Wisconsin and Robert Torricelli of New Jersey, have said they would be inclined to vote for him. Even Sen. Patrick Leahy, D-Vt., who fiercely battled Ashcroft over judicial nominations, has come short of saying he will challenge the nomination. Because Democrats hold a temporary majority in Congress, Leahy could chair Ashcroft’s confirmation hearing if it begins next week.

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