Jan. 8, 2001 | He couldn't have known it at the time. But on
Oct. 4, 1999, when Missouri Sen.
John Ashcroft rose on the floor of the United States Senate to oppose the nomination of a black
Missouri judge to the federal bench, the conservative Republican was about to give the most
politically damaging speech of his 25-year career.
At that moment it represented a triumph for Ashcroft. He'd dropped
plans to win the 2000
Republican presidential nomination due to little support, and he'd made an equally lackluster run to
become chairman of the Republican National Committee in 1993. So Ashcroft's ability to convince
every one of his GOP colleagues to join with him in voting down the nomination of Missouri
Supreme Court Justice Ronnie White -- the first time Republicans had publicly rejected one of
President Clinton's judicial nominees -- signaled real influence within the Republican Party.
Standing on the floor of the Senate, Ashcroft seemed to go out
of his way to belittle and ridicule
White. The Missouri senator labeled the Democratic judge "pro-criminal," and cautioned colleagues
that White would substitute "personal politics" for the law, and "improperly exercise his will" if
confirmed. That, despite the fact that White's judicial record was not all that different from judges
Ashcroft had appointed to the Missouri Supreme Court when he was governor.
After the vote Ashcroft crowed that White's defeat was a victory
for Missouri law enforcement.
Instead, the "victory" haunts Ashcroft to this day. It ended his elected political career last Nov. 7,
when Ashcroft lost his first statewide runoff in more than two decades. And now it appears to be the
only obstacle standing in the way of him becoming George W. Bush's attorney general, as critics
prepare to use the White nomination to question both Ashcroft's racial tolerance and his sense of
political fair play.
That's a high price to pay for opposing a district judge, which
is why in retrospect Ashcroft's militant
objection to White -- or his "marathon public crucifixion," as one of Ashcroft's own fund-raisers put
it last year -- seems so puzzling, and oddly personal.
No doubt it was actually political. Ashcroft thought tarring
White with the pro-crime brush, and
defeating his nomination, would help him in his reelection battle with Missouri Gov. Mel Carnahan,
who'd gotten into political hot water after he commuted a death sentence in 1999 at the behest of
Pope John Paul II.
While White's defeat galvanized African-Americans, who believe
Ashcroft's crusade had racial
overtones, the Republican's grudge against the moderate Missouri judge may have had more to do
with Ashcroft's extreme anti-abortion agenda than either race or purported concerns about White's
toughness on crime. Ashcroft and White had battled over abortion in Missouri since the early 1990s,
when White was a state legislator and Ashcroft was governor.
Why would the rabidly anti-abortion Ashcroft cloak his opposition
to White's nomination in terms of
concern about crime? Politics. In the normally collegial Senate, there's an unwritten agreement that
abortion won't be used by either side as a litmus test to block nominees. Ashcroft may have also
gambled, and lost, that a crusade against White based on abortion would cost him more politically
than one based on concerns about crime -- which, when used against a black judge, couldn't help
but have racial overtones.
Perhaps Democratic members of the Senate Judiciary Committee,
who will certainly press Ashcroft
about the White battle during his upcoming confirmation hearing, will have better luck figuring out
exactly why the Republican fought his fellow Missourian's relatively low-level nomination so fiercely.
In fact, White himself may appear before the committee. More than a year after White's rejection,
many political observers in Missouri, who doubt that White is either a pro-criminal jurist or an
anti-death penalty zealot, are still scratching their heads over Ashcroft's ill-conceived and ultimately
"It's perplexing," says Ken Warren, professor of political science
at St. Louis University.
"Republicans and Democrats alike cannot understand Ashcroft's opposition to Ronnie White." For
Ashcroft politically, "it was like injecting cyanide into his veins," says Warren.
White's defeat stunned Democrats and created a firestorm of controversy,
with President Clinton
labeling the vote a "disgraceful act." In Missouri, tempers flared for weeks, particularly among
African-Americans who were outraged Ashcroft not only opposed White's nomination but, they
insist, routinely and maliciously misrepresented his judicial record.
"He demonized the nomination of an extremely well qualified jurist
by falsifying his record and by
misrepresenting his ideology," says Yvonne Scruggs-Leftwich, executive director of the umbrella civil
rights group the Black Leadership Forum.
"I suspect Ashcroft underestimated what the importance was,"
says David Bositis, senior policy
analyst with the Joint Center for Political and Economic Studies in Washington, a think tank focusing
on issues important to African-Americans. "He'd been able to win elections as governor and senator
with just a handful of votes from blacks so he probably thought it wasn't going to be that big a deal.
Instead, it turned out to be why he lost reelection."
Indeed, blacks didn't just get mad, they got even. "Our efforts
to defeat the senator began on the day
Ronnie White's nomination was denied," says Rev. Sammie Jones, pastor of Mount Zion Baptist
Church in St. Louis. "Across the state we began making phones calls and to make plans to let
Senator Ashcroft know come election time our voices would be heard. The Ronnie White situation is
kind of our Alamo. We will remember that every time we hear Ashcroft's name."
In one of the clearest examples of retaliation voting, African-Americans,
whose Missouri voter
turnout rate reached record levels last November, turned Ashcroft out of office despite the fact that
his opponent, Gov. Mel Carnahan, had died in a plane crash three weeks before the election.
"Maybe Ashcroft thought we'd take it like we took it for so many years. He certainly didn't think
he'd lose the election," says the Rev. B.T. Rice, pastor of the New Horizon Seventh Day Christian
Church in St. Louis.
Rice claims Ashcroft had never been a friend to minorities. In
a now-famous interview with Southern
Partisan magazine, Ashcroft praised the "honor" of Confederate commanders and praised the
magazine for making clear the Confederacy was "not a perverted agenda."
Ashcroft is widely known for opposing St. Louis' plans for school
desegregation, blocking the
nomination of Bill Lann Lee to head up civil rights enforcement at Janet Reno's Department of Justice,
as well as Clinton's choice of Dr. David Satcher, the black nominee for surgeon general. But it was the
senator's opposition to White that galvanized the black community. "We sent a very clear message that that
kind of demagoguery would not be tolerated," says Rice. (He concedes that having voted Ashcroft out of
office only to see him nominated for attorney general simply adds to blacks' frustration.)
Conventional wisdom suggests Ashcroft lost because his dead opponent's
widow was chosen to
succeed him and garnered sympathy votes. But Bositis argues Ashcroft, thanks to passions stirred
by the Ronnie White saga, was headed toward a narrow yet decisive defeat even if the governor's
plane had not perished. "The election was a referendum on the incumbent and he came up short," he
says. (Interestingly, Bush won Missouri by 80,000 votes; Ashcroft lost by 50,000.)
Ronnie White was nominated in June 1997 by President Clinton
to the Federal District Court of the
Eastern District of Missouri, based in St. Louis.
Ashcroft might have opposed White on various grounds, such as
his lack of experience. But
Ashcroft himself was never a stickler for seasoning when it came to selecting judges. Back in 1985
the then-governor appointed his 30-something chief of staff to Missouri's Supreme Court. The
number of days his aide had served as a judge before being sworn in to the state's highest court?
And initially, Ashcroft gave little indication that he'd block
the appointment of his fellow Missourian.
Both men owed their ascension in Missouri politics to a fortuitous tap on the shoulder. For Ashcroft,
that tap came in 1973, when then-Gov. Christopher "Kit" Bond handpicked Ashcroft, who at the
time was a political novice with one failed congressional run, to fill out the term of state auditor. Even
with the aid of incumbency, Ashcroft lost his reelection bid as auditor. But he soon found a position
in John Danforth's state attorney general's office.
In 1976 the clean-cut Ashcroft became Missouri's attorney general,
a position he held until 1985 when he
was sworn in as governor, succeeding his political patron, Bond, who was off the United States Senate.
In 1994 Ashcroft captured 60 percent of the vote and easily won a seat of his own in the Senate.
White's political good fortune arrived in 1989, when Democratic
officials needed to fill a state representative
position after the incumbent quit midterm to accept a judgeship. White, a little-known attorney with the
St. Louis Housing Authority, got the nod and served out the term. Representing a heavily Democratic district,
he easily won reelection. Four years later White was tapped to become the city's general counsel.
The very next year Gov. Carnahan named White to the Missouri
Court of Appeals in St. Louis. One year
after that, Carnahan tapped White again, this time to the Missouri Supreme Court. In just six years White went
from being a staffer at the St. Louis Housing Authority to sitting on the Missouri Supreme Court.
His rapid rise continued; one year after White reached the Supreme
Court, Bill Clay, the congressman from
St. Louis, recommended White for a federal judgeship, a nomination he received in 1997.
Like most women and minority nominees to the bench, White's name
quietly languished for months in
the Republican Senate through 1997 and 1998. By then Ashcroft's opposition to White was clear
and most assumed he was the one holding up the process behind closed doors. But it wasn't until
1999 when the senator began his reelection run against Missouri's popular Gov. Carnahan that
Ashcroft's anti-White rhetoric began to heat up.
In the end, Ashcroft's central argument was that White was "pro-criminal,"
a charge loaded with
racial overtones. "It means prisons are full of blacks and if you get black folks on the court you're
going to have anarchy," says Scruggs-Leftwich at the Black Forum. "Those are code words
understood by African-Americans."
But Ashcroft admirers like Kris Kobach, a professor of constitutional
law and legislation at the
University of Missouri-Kansas City Law School, point out Ashcroft has supported 26 of 28 black
judges nominated by Clinton, and as governor appointed the first black judge to an appellate court
as well as appointed blacks to his Cabinet. "He trusts and takes advice from African-Americans,"
says Kobach. Other supporters note he backed the somewhat controversial Martin Luther King Jr.
Day holiday, and Ashcroft himself denies the charge of racism, insisting "the same God judges all of
us by the content of our character, not the color of our skin."
All that adds to the suspicion that this fight was really about
something else. Could Ashcroft's real
motivation for opposing White have been abortion? It would explain the animus Ashcroft held for the
nominee, since the two crossed swords over the hot-button topic during the early '90s, when White
was a state representative and Ashcroft the governor.
In 1991, longtime Ashcroft foe and the Democratic Speaker of
Missouri's General Assembly Bob
Griffin awarded White the chairmanship of the Civil and Criminal Justice Committee. Griffin then
made sure to steer all anti-abortion legislation into White's committee where he helped thwart it.
In the spring of 1992 an especially contentious anti-abortion
bill calling for prison terms for doctors
was awaiting vote in White's committee. The chairman called for a meeting on March 2, but
promised no votes would be taken. Halfway through though, a roll call was taken and with one
anti-abortion representative not present the bill lost on a vote of 8-8, since a tie meant the legislation
died in committee. Proponents of the bill, including Ashcroft, cried foul over White's tactics.
But to the dismay of anti-abortion activists in Missouri, Ashcroft,
who recently supported a
constitutional amendment that would outlaw abortions, including in instances of rape and incest,
rarely uttered the word abortion during his public fight against White's nomination. Instead he
emphasized the issues of crime and the death penalty.
Why? Politics, says Warren at St. Louis University. "It would
have been unsellable to Republicans if
Ashcroft opposed Ronnie White based on abortion rights," he says. "Republicans and Democrats
have pledged an unsigned promise that when confirming nominees a litmus test cannot be if he or she
is for or against abortion rights. Plus, Republicans are starting to become aware that taking adamant
anti-feminist positions will kill you."
Still, there are lots of clues that abortion drove Ashcroft's
opposition. What was the senator's first
question to White in the May 14, 1998, hearing before the Senate Judiciary Committee? "Justice
White, if the Supreme Court were to uphold a federal partial birth abortion ban as constitutional,
would you have any difficulty in applying a decision of the Supreme Court which upheld such a law?"
White said he would not.
At the time, White's view of the death penalty did not seem to
be of paramount concern to Ashcroft.
In fact, during White's May appearance before the Judiciary Committee Ashcroft never even
questioned the nominee about the topic, nor about what Ashcroft later dubbed White's
That same year during a televised debate, Kit Bond's re-election
opponent accused him of bottling
up the White nomination. Bond denied the charge but conceded that concerns about White's
abortion rights record were causing the delay.
When White's nomination finally passed out of Judiciary Committee
on a 15-3 vote May 21, 1998,
Ashcroft cast one of three dissenting votes. At the time he could have raised a formal objection that
would have almost certainly doomed the nomination then, but he did not. Instead, like a doctor
examining X-rays, Ashcroft announced he had detected "indications of potential activism" in the
judge's record and was voting no. He made little mention of the death penalty.
So what happened to pique Ashcroft's interest in the death penalty
between May of 1998 and
October of 1999 when White was defeated? The Pope paid a visit to St. Louis.
In December 1998 the Missouri Supreme Court scheduled the execution
of convicted murderer
Darrell Mease for the night of Jan. 29, 1999. That just happened to be the same day Pope John Paul
II was going to be in St. Louis during his historic visit. The court quietly changed the execution date,
but aides at the Vatican had already taken note.
On Jan. 29, Carnahan was asked to meet with the Pope's emissaries
at the home of St. Louis
Archbishop Justin Rigali. There, they urged Carnahan, a Southern Baptist, to spare Mease's life.
Later, at a prayer service at St. Louis' Roman Catholic Cathedral, the pope, a crusading
death-penalty opponent, approached Carnahan sitting in the front pew and asked him to "show
mercy" on Mease. That night Carnahan created his own political firestorm when he signed papers
commuting Mease's sentence to life in prison without parole.
Ashcroft, who received an honorary degree from controversial
Bob Jones University, which has
equated Catholicism with a cult, wasted little time tying Carnahan's decision to honor the papal
request with a charge the governor was soft on crime. Ashcroft embarked on a victims' rights tour of
Missouri, even inviting relatives of those murdered by Mease to testify. (The charge Carnahan was
soft on crime never did stick, partly because he'd signed off on 26 executions as governor.)
Simultaneously, White's judicial record came under new scrutiny
from Ashcroft, who warned that the
Carnahan appointee would use the federal bench to "push the law in a pro-criminal direction, rather
than defer to the legislative will of the people and interpret the law as written."
The record shows that as a justice on the Missouri Supreme Court
White voted 41 times to affirm
death penalty cases, and 18 times to reverse execution sentences. In many of those 18 rulings White
joined the majority with justices appointed by Ashcroft. Five of those 18 decisions striking down
death sentences were unanimous, where White was joined by conservative Missouri Supreme Court
Justice Stephen Limbaugh, cousin of Rush Limbaugh. Just three times in nearly 60 death penalty
cases did White write solo dissents urging death row prisoners be granted new trials. And in none of
White's decisions did he argue the death penalty was unjust or unconstitutional.
In what may have been an unprecedented standard for nominees
facing federal confirmation, in the
final days of his campaign to defeat White, Ashcroft and his allies based their entire opposition
around a single "shocking" dissent written by White while his nomination was pending. (The
conservative press now clings to the same one dissent to justify Ashcroft's crusade.)
It involved the 1991 killing spree of James Johnson, a helicopter
mechanic from California, Mo.,
who, during a 24-hour frenzy, stalked and murdered three sheriffs and the wife of another. Johnson
was sentenced to death. In 1998 the Missouri Supreme Court heard Johnson's plea for a new trial.
He lost by a vote of 6-1, with White being the lone dissent. White never suggested Johnson was innocent
or that his crimes did not warrant the death penalty. "If Mr. Johnson was in control of his faculties when he
went on this murderous rampage, then he assuredly deserves the death sentence he was given," White wrote.
Instead, White argued Johnson's "unprofessional" counsel botched
his defense by badly exaggerating, in the
trial's opening statement, the post-traumatic stress disorder syndrome symptoms Johnson was supposedly
suffering at the time of the killings. They were exaggerations counsel never backed up in court.
"I find it is reasonably likely that a jury that had not seen
the defense destroy its own credibility
would have been sufficiently receptive to the expert diagnosis of a mental disease or defect to permit
a reasonable likelihood of a different result."
White wrote that opinion in April 1998. Sixteen months later
in August 1999, Ashcroft held a press
conference to criticize it.
At the time, Ashcroft also insisted Missouri law enforcement
was up in arms over White's nomination
and that he was responding to their groundswell of concern. But the groundswell, such as it was, had
been entirely concocted by Ashcroft. Two police groups, the Missouri Fraternal Order of Police and
the Missouri Police Chiefs Association, declined to oppose White's nomination, even after they were
lobbied directly by Ashcroft's office. The Missouri Sheriffs Association did object to White, but two
years after he was nominated, and only after a member read about Ashcroft's August press
conference in the newspaper. So much for a grass-roots movement against White.
If Ashcroft's behavior during the White nomination was puzzling,
Sen. Bond's 11th-hour flip-flop
bordered on the bizarre. The senior, and more moderate, Republican senator from Missouri
originally gave White his blessing, and even introduced him to the Senate Judiciary Committee,
where he urged members to "act favorably" on a nominee "of the highest integrity and honor." As the
process dragged on and White's nomination languished for months and then years, Bond reportedly
pleaded unsuccessfully with Ashcroft to ease off the judge.
During Bond's 1998 reelection campaign he met with 100 black
Missouri ministers at Roberts Steak
House in St. Louis. During a question and answer session the Rev. Rice stood and asked Bond if he
would support White's nomination. According to Rice, "He said, 'Most certainly I will.' All those
preachers heard him say that."
Bond won reelection handily, thanks in part to winning roughly
30 percent of the black vote, an
astonishing showing for a Republican candidate.
In January 1999, with no action taken by Congress, Clinton had
to re-nominate White, and Bond
again said he would support him.
Nine months later though, and one day after Ashcroft rose to
oppose White on the floor of the
Senate, Bond addressed members of the Republican caucus during its weekly meeting. There,
behind closed doors, in a 20-second briefing, he announced he was now opposed to White's
nomination. Two hours later the vote on White became a hard, party-line effort. Why? "To back up
a Republican in a close Senate race, they all rallied behind Ashcroft," says one congressional aide
who dealt with the White nomination.
Why, for a nomination that had been languishing for over two
years and one that he initially
sponsored, did Bond wait until the day of the vote to change his mind? At the time, he claimed he
"did not have an opportunity to look at this [matter] sooner."
Since both senators from White's home state were voting against
him, his confirmation, according to
Senate protocol, was doomed. But unlike virtually every other scuttled judicial nomination, White's
was voted down in public, a particularly humiliating defeat. (Today, the battle for judicial nominees is
simply to make it to the Senate floor for an up or down vote; once there, they usually pass
overwhelmingly.) In fact, White became the first District Court nominee voted down by the full
Senate in nearly half a century.
"Senator Ashcroft could have killed the nomination in committee
but he chose to do it a way that
Justice White cannot ever be rehabilitated as a nominee again," says Rice. "That was to add insult to injury."
As Ashcroft prepares for his own confirmation hearing, his Missouri
opponents want to make sure
his colleagues understand what happened to Ronnie White. To advance his extreme anti-abortion
agenda, as well as his own career, a United States senator denied a federal judicial nominee
confirmation by grossly distorting his record. And if Ashcroft's rejection of Justice White leads to his
own rejection by the Senate, so be it, his opponents say.
Either way, says Rice, "It's a decision John Ashcroft needs to live with."