- The Washington Times - Monday, January 29, 2001

Four prominent presidential nominees who endured grueling confirmation hearings say that, win or lose, John Ashcroft has joined a small club for whom the absence of senatorial decency went "beyond the pale."

"It's time to bring the Ashcroft hearing to an end, up or down," former Attorney General Griffin B. Bell, President Carter's 1977 nominee, told The Washington Times after recalling he survived a "pretty rough" two-week process so harsh that he got the chairman's permission to stay away after a week on the witness stand.

Former Attorney General Edwin Meese III and defeated Supreme Court nominee Robert Bork Reagan nominees battered in the Senate Judiciary Committee said in separate interviews that hostile interest groups embolden Democratic senators to excesses of inquisition in a process already out of control.

Both Mr. Meese and Mr. Bork said President Bush is the real target.

"They'd like to get Ashcroft if they could. The second motivation is to put a shot across the bow of the president to try to persuade him to propose weaker nominees for the Supreme Court," Mr. Meese said.

"It's a warning to the president that he better appoint squishes," said Mr. Bork, who attributes his own 58-42 defeat to a fear which he said was correct that he would be a deciding vote to reverse Roe v. Wade, which forbids states to ban abortion.

Tough questioning of Cabinet choices is particularly rare. In the nation's history, only 18 announced Cabinet selections failed to get the job, including seven who withdrew under fire and two who were defeated in committee.

After days of grueling inquiry into religion, racial attitudes, integrity, and Mr. Ashcroft's hiring practices as Missouri attorney general, the former Republican senator was given more than 400 additional written questions and the vote on his nomination postponed until he answered them.

"By my count, Ashcroft will have answered roughly 700 questions en route to confirmation," said Paul C. Light, who heads the Brookings Institution's nonpartisan Presidential Appointee Initiative studying the confirmation process.

"Ashcroft is almost being peppered to death in a way I haven't seen before. It's kind of a confirmation by 700 paper cuts," Mr. Light told The Times.

By contrast, Democrat Janet Reno in 1993 got 35 questions in writing, all from fellow Democrats, after a procedure at which no outside witnesses testified, a discrepancy pointed out by Senate Judiciary Committee Chairman Orrin G. Hatch, Utah Republican.

"This represents an unprecedented intrusion, I believe," Mr. Hatch said. "Certainly members are entitled to ask follow-up questions to a nominee, but this seems to be going to the extreme."

Mr. Bell's successor as President Carter's attorney general, Benjamin R. Civiletti, had a more cordial confirmation hearing but told The Times he still resents charges that as a Justice Department official he failed to adequately prosecute police brutality to Hispanics in border areas.

"Sometimes it is purely partisan and political, but more frequently it's on issues. Issue concern can appear to be mostly Republican or mostly Democrat, because of the nature of the issues," said Mr. Civiletti, who said some senators use hearings to promote themselves rather than defer to a president's choices to implement his policies.

"Decency, civility ought to have more to do with it than any boundaries on subject matter," said Mr. Bell, who was grilled on membership in segregated private clubs from which he resigned, a supportive letter he wrote for Nixon Supreme Court nominee G. Harrold Carswell, and charges of being a Carter "crony."

When Mr. Bell testified in support of Clarence Thomas' 1991 high-court nomination, he said: "Only one who has been interrogated endlessly in such a hearing by a large group of senators I speak of myself some of whom were even hostile, can fully appreciate the tremendous pressure and wear that one undergoes in such an ordeal. Surviving such a ritual with one's character, reputation, good humor and dignity intact is a victory within itself."

"There aren't any limits to what they can ask but, in decency, they should satisfy themselves they are dealing with a man of sufficient intelligence that he can do the job and sufficient integrity to assure he will do it in good faith," said Mr. Bork, whose 1987 defeat for the Supreme Court spawned the term "borking," which he says some politicians consider a sure road to political immortality.

"The hostility towards John Ashcroft's religious faith is extraordinary. Everyone celebrated when Joe Lieberman began to talk about his faith when he was nominated for vice president, but when Ashcroft does it, he's suspect," Mr. Bork said. Mr. Ashcroft is a non-charismatic Pentecostal Christian; Mr. Lieberman is an Orthodox Jew.

Mr. Meese whose extraordinary confirmation hearing involved four days in March 1984 and three days in January 1985 blames "the viciousness of left-wing groups" and Democrats' "mean-spiritedness."

"I can't think of a single Democrat nominated for a Cabinet position who's been treated like this," Mr. Meese said.

Mr. Bell said his opposition "wasn't as divided by parties" as Mr. Ashcroft's, which has been led by People for the American Way. Mr. Bell was approved over 15 Republican no votes and six from Democrats.

Mr. Civiletti disputed the one-sidedness theory and offered a hypothetical situation to buttress that view.

"Suppose Vice President Al Gore had been elected, and he nominated an attorney general zealous in favor of abortions, and zealous against any connection between religion and government, and zealous with regard to eliminating the death penalty. I think that would cause some Republican groups to vigorously campaign against confirmation," Mr. Civiletti said.

"Both the length of the hearings and the timing of the process have been expanded to fit the whim of a group of leftist forces out not to find facts but to destroy John Ashcroft," argued Mr. Meese, now a fellow at the Heritage Foundation. "There are no practical limits on the Senate power, because it assumes the good faith and the sense of decency of individual members, but that does not mean it should be a license for derogation and unprincipled attacks."

Mr. Civiletti said the focus of written questions routinely goes beyond intelligence and integrity when senators are interested in "trying to get a commitment at a time when the fates are inclined to give commitments." He said a senator interested in antitrust enforcement might ask about budget and manpower in hopes of winning a promise it won't be cut.

Charles J. Cooper, who headed the Justice Department Office of Legal Counsel that advised President Reagan during his 1986 elevation of Justice William H. Rehnquist to chief justice, warned then that "the Senate can claim a legitimate interest in obtaining information about the nominee."

Mr. Cooper said the scope and number of questions posed to Mr. Ashcroft seems designed to harass, but refusal to answer would imperil his nomination.

"The Senate does, as my 1986 opinion made clear, have a legitimate reason to insist upon relevant information about the fitness of the candidate for the post that he's been nominated for," Mr. Cooper said.

"There may be 100 different conceptions of fitness among 100 senators, but a nominee can't just say no. It's not only just not politic; it's not feasible.

"If he takes that tack, he doesn't get the job," Mr. Cooper said in an interview. "Senators are trying to do what most litigators do in a scorched-earth, high-stakes case, just exhaust the other side."

In 212 years, the Senate has voted down nine Cabinet nominees, most recently the 53-47 rejection of Sen. John Tower's 1989 nomination to be defense secretary. Until then, the most recent rejection was in 1959.

In a 1997 letter withdrawing his Cabinet-rank nomination to be CIA director, National Security Adviser Anthony Lake told President Clinton he was concerned about "partisanship" and "gotcha" tactics within the Senate Intelligence Committee.

At the time, former Sen. Malcolm Wallop, Wyoming Republican, dismissed Mr. Lake's experience as mild compared with the Tower, Bork and Clarence Thomas hearings.

"I think the Senate has been declining in civility ever since we were televised," Mr. Wallop said. "Now it's a place where people go to give speeches on television … and they hurt."

Mr. Meese's own ordeal began with questioning on March 1, 2, 5, and 6 of 1984, then recessed until an investigation by independent counsel Jacob Stein cleared him. Hearings resumed Jan. 29-31, 1985, and Mr. Meese headed the Justice Department for 3 and 1/2 years.

"John Ashcroft is one of the most principled and dedicated public servants in the country, and he doesn't deserve this kind of treatment," Mr. Meese said.


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