Confirmation Bear Traps

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When Bush tapped Ashcroft, on the Friday before Christmas, the former Missouri Senator wasted no time; he got on the phone and began tracking down his Senate colleagues at home. The teetotaling son of a famed Pentecostal minister, Ashcroft, a onetime Missouri Governor so strict that he refused to dance at his own inaugural ball, is the kind of hard-line conservative who makes liberal toes curl. Yet as he reached Senate Democrats like Russ Feingold and his old Yale classmate Joe Lieberman, he was able to elicit warm responses, or at least pledges of neutrality. Feingold called him a "respected public servant with a fine legal mind." New Jersey Democrat Bob Torricelli called him "a very good choice," praised his "sound judgment and high integrity" and said he favored his confirmation.

That infuriated liberal activists, who scrambled to get Democrats to keep quiet and "stop message erosion," as a Senate aide put it, until they had time to dig into Ashcroft's past and shape a grass-roots campaign against him. But that will take some doing; even Ted Kennedy counts Ashcroft as a friend. "He's an able person, and he's got a good mind, and he's a hard worker," Kennedy told TIME. "We've tangled on policy issues," he added, predicting that "there will be sharp questioning over whether he's going to be in the mainstream or on the edges." Ashcroft is a good note dropper who dashes off friendly cards to Republicans and Democrats alike. After his bitter Senate loss to the late Mel Carnahan in November, he sent a page-long handwritten note to Democratic leader Tom Daschle, thanking him for his friendship and help during the previous six years. Ashcroft said his only regret was that they didn't get to know each other better.

Chances are they will now. A quirk in the calendar and Constitution has seen to it that the Democrats will actually be in control of the Senate for the 17 days leading up to Bush's Inauguration. While no final votes will be taken before then, temporary Judiciary Committee chairman Patrick Leahy plans to open hearings on Ashcroft and may even call as a witness Ronnie White, the African-American judicial nominee whose candidacy Ashcroft famously torpedoed in 1999. White, the first black member of the Missouri Supreme Court, was Bill Clinton's choice for a federal district court seat. Ashcroft single-handedly built the opposition that crushed White, charging that his record showed "a tremendous bent toward criminal activity." It was the first time the full Senate rejected a judicial nominee since Robert Bork in 1987.

Civil rights groups cried foul and vowed revenge. "It really was a case of John Ashcroft misleading the U.S. Senate," says People for the American Way chief Ralph Neas. "Ronnie White wasn't anti- death penalty or pro-criminal." White had voted to uphold death penalties in 41 out of 59 capital cases that came before him, his allies noted. In most of the cases where he didn't uphold death sentences, he wasn't alone--the decision was unanimous. And in two of six cases in which White wrote for the majority upholding a death sentence, he did so over the dissent of justices appointed by Ashcroft.

But Ashcroft allies counter that Ashcroft could not ignore a case in which White was the lone vote to overturn a death penalty--the notorious case of Missouri cop killer James Johnson. In 1991 a sheriff's deputy arrived at Johnson's house after Johnson threatened his wife and daughter with a gun. Johnson shot the deputy in the back, then in the head. He then drove to the home of the local sheriff and shot the sheriff's wife five times during a holiday party; she died in front of her family. He wounded another deputy and killed two more outside the sheriff's office before he was captured. His insanity defense was unsuccessful, and the Supreme Court upheld the sentence. But in his dissent, Judge White argued that Johnson had been represented by incompetent counsel.

Ashcroft defenders say it was this decision that swung moderate Republicans against White and led them to reject him for the federal court. They dispute the charge that Ashcroft is a racist, noting that as Missouri Governor he appointed the first African-American judge to the court of appeals and signed into law the holiday honoring Martin Luther King Jr. But he also accepted an honorary degree in 1999 from Bob Jones University, which until recently forbade interracial dating, and defended Confederate leaders as "patriots" in Southern Partisan magazine, a pro-Confederacy publication that he praised for helping "set the record straight."