Will Democratic Senators Confirm John Ashcroft?
ANNOUNCER:  THE POINT WITH GRETA VAN SUSTEREN: Political fireworks and angry words on day two of the John Ashcroft confirmation hearings.</s>SEN. EDWARD KENNEDY (D), MASSACHUSETTS: I think this nominee owes an apology to the people of the United States for that insinuation.</s>ANNOUNCER: From the right to bear arms to the right to an abortion, a day of tough questions and answers.</s>JOHN ASHCROFT, ATTORNEY GENERAL NOMINEE: I don't believe there is a First Amendment right to coercion and intimidation.</s>ANNOUNCER: Tonight's point: Will Ashcroft be confirmed? Plus, teeing off at the Supreme Court.</s>THE POINT: Now from Washington, Greta Van Susteren.</s>GRETA VAN SUSTEREN, HOST: John Ashcroft: a great choice or a scary choice for attorney general? When I watched today's confirmation hearings, the demeanor of the senators and the content of their questions made it pretty clear some Democrats think he's scary, and the Republicans, they think he's great, which leads to yet another question. Tonight's "Flashpoint": Will John Ashcroft be confirmed? That's a political question, and as CNN congressional correspondent Chris Black shows us, politics was never far from the surface during today's long session of questions and answers.</s>CHRIS BLACK, CNN CONGRESSIONAL CORRESPONDENT (voice-over): John Ashcroft is playing defense on the issue of race on the eve of testimony from the African-American judge he kept off the federal bench.</s>ASHCROFT: I believe that racism is wrong. I repudiate it. I repudiate racist organizations.</s>BLACK: Democrats say Ashcroft's record raises doubts about his sensitivity to the rights of minorities.</s>SEN. JOSEPH BIDEN (D), DELAWARE: So many average black Americans that sit there and say, jeez. I don't want this guy. I don't want this guy. I'm not crazy about having this guy. I just -- if you understand that, because you're probably going to be attorney general. This matters to people, John. Words matter.</s>BLACK: And Ashcroft was accused of distorting the judicial record of Missouri Supreme Court Judge Ronnie White.</s>SEN. DICK DURBIN (D), ILLINOIS: A man who has an extraordinary background was given, I think, shabby treatment by the Senate because of your instigation, Senator Ashcroft.</s>BLACK: Democrats say Ashcroft sounded like one of them. He said in Supreme Court cases on abortion, he would not direct the solicitor general to argue in favor of overturning abortion rights. Ashcroft promised to enforce current gun control laws, including the assault weapons ban and the seven-day waiting period for handguns. He agreed laws requiring the registration and licensing are constitutional. Ashcroft's allies complained Senator Edward Kennedy misrepresented Ashcroft's record on issues like the desegregation of St. Louis public schools.</s>SEN. JON KYL (R), ARIZONA: Senator Kennedy, in his opening statement, launched litany of attacks against Senator Ashcroft, some of which Senator Ashcroft had an opportunity to address. In my opinion, most of these attacking had the effect of distorting Senator Ashcroft's record, and I think that they were unfair.</s>BLACK: The Senate's liberal lion roared back.</s>KENNEDY: The fact is Senator Ashcroft didn't listen to the judges saying that the state was involved. That's the fact, senator, and I don't retreat on that.</s>BLACK: Kennedy told reporters he's not ruling out a filibuster against the Ashcroft nomination. But Democratic leader Tom Daschle told CNN Democrats will not block any Bush appointees.</s>SEN. TOM DASCHLE (D-SD), MAJORITY LEADER: We want to ensure that this president has his day in court and that his nominees get a vote.</s>BLACK: The Senate Judiciary Committee is getting ready to call it a day, more than 10 hours after they began early this morning. Senator Ashcroft's supporters said they think he did pretty well today, but his opponents say he only presented half of the case, and they say they intend to show the other half tomorrow -- Greta.</s>VAN SUSTEREN: Chris, Senators Durbin and Biden seemed to shame John Ashcroft and Senators Kennedy and Leahy seemed to chastise him. What was his reaction? Did he look as he sat there listening to these senators basically give him a tough time?</s>BLACK: Senator Ashcroft is a very experienced politician, Greta. He served eight years as governor of his state of Missouri; eight years as attorney general; six years here in the Senate. Very tough to rattle someone with that kind of experience. He knew -- and he also knows the Senate Judiciary Committees members extremely well because he used to be on committee. So they weren't able to rattle him. He was very, very calm. The Democrats did not succeed, in a sense that they weren't able to maybe build up a lot of support, votes against him. In fact, if anything, they lost ground today. Senator Zell Miller, who's a Democrat from Georgia, announced that he will vote to confirm Mr. Ashcroft. But what they did manage to do was box him in. They got him to take positions on a lot of issues, like abortion rights, like gun laws, that he would enforce the existing laws, which the proponents say is something of a victory.</s>VAN SUSTEREN: You know, Chris, I'm always so surprised by the reaction of these senators when they go after each other. Obviously, John Ashcroft is a former senator. But what are the sort of the dynamics after you've gone through an experience like this? Is it just politics and they can still talk to each other in the hall or are there bruised egos?</s>BLACK: Well, it really depends upon the individual. For the most part, it is sort of part of the warfare up here; it's part of a tit-for-tat. Though I must tell you, based on all my years covering Capitol Hill, the partisan enmity between Republicans and Democrats has gotten quite a bit worse. The Democrats are more liberal than ever, the Republicans are more conservative than ever, and while there are certain notable exceptions -- like Orrin Hatch and Ted Kennedy, for example, are very good friends even though they agree on nothing -- most -- the newest development is that most conservative Republicans really don't like Ted Kennedy, really don't like their liberal colleagues. So you find a lot more tension than you used to. In fact, Ashcroft really, he was not as unpopular up here as, say, Senator John Tower was. He's the only senator who was ever rejected by the Senate for a Cabinet post, but he wasn't really that popular, particularly with Democrats</s>VAN SUSTEREN: All right, Chris. Stand by for a moment. Now, I want to bring in CNN senior political analyst Bill Schneider, who's here in our Washington bureau. Bill, what's the Ashcroft strategy?</s>WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: His strategy is to separate the personal from the political. What he's doing is saying, you know, he's going -- he has a hard line, politically. He's very conservative on all those issues. But personally, he's making the point he's compassionate. He's open. He's unbiased. He's tolerant, and will not -- his hard line on the conservative issues will not interfere with his ability to perform the job of attorney general.</s>VAN SUSTEREN: How does that work? Obviously, we have a 50-50 split Senate, so it's a little bit different. But ordinarily, how do you sort of separate yourself out from ideology and say, look, I can do the job even though my ideology may be in conflict with it?</s>SCHNEIDER: Well, how does it work? George Bush does it. He's really imitating the Bush strategy of being a compassionate conservative. Look what President-elect Bush has been doing. He says I will take a hard line on abortion and on affirmative action and on gay rights. He refuses to support a hate crimes bill, but at the same time, he embraces conservative adversaries. He welcomes the support of abortion rights supporters like Christine Todd Whitman and affirmative action supporters like Colin Powell and gays who supported his campaign. So he endorses conservatives' positions, but he embraces their adversaries. In that way, he's able to have it both ways. Well, what John Ashcroft is doing is he knows the rules in the Senate. The rules are that you do not -- when a Cabinet nominee is up for confirmation, ideology is not supposed to be grounds to reject him. You have to reject him on character. That's what happened with John Tower. He was rejected not because of his views, but because of flaws of character. Ashcroft is making sure that they're not going to get him on those grounds.</s>VAN SUSTEREN: Bill, Senator Zell Miller, who is a Democrat, has said that he will now vote for Senator Ashcroft as the attorney general of the United States. That makes 51 for sure, at least. So, he's going to get the nomination. Does it make a big difference if Senator Ashcroft is voted in with 51 or 65 or 85; what difference? If he wins, he wins.</s>SCHNEIDER: Well, if he is voted in with solid Republican support but with very little Democratic support, if he loses most Democratic senators, then he comes in as a very partisan attorney general. That's very rare in a Cabinet appointment. A Cabinet appointee...</s>VAN SUSTEREN: But so what? But I mean, so -- I mean, he's still in the job.</s>SCHNEIDER: Of course, he's in the job, but he doesn't have the legitimacy that most Cabinet appointees can count on. You know, a Cabinet appointment is very different from a federal judge. You can reject a federal judge on grounds of his philosophy, his ideology. That's how Robert Bork was rejected. You're not supposed to do that with a Cabinet appointee because a Cabinet appointee serves at the president's discretion and he's supposed to share the views of the president. So his ideology is not supposed to be an issue. Well, if he goes in and it's clear that Democrats repudiated him from the outset, he's going to lack the legitimacy that an attorney general, as the chief law enforcement officer of the United States really has to have.</s>VAN SUSTEREN: Chris, we've had two days of the hearings and we're going to have another one tomorrow. What's up next on this hearing?</s>BLACK: Well, the lead-off witness tomorrow, Greta, is Ronnie White; the Missouri Supreme Court Justice whom Ashcroft blocked from getting on the federal bench. He will be by himself. He will be the first witness. He will be giving his side of that story.</s>VAN SUSTEREN: And after that, do we know who comes up after Ronnie White if he doesn't take up the whole day or is that the end of the hearing?</s>BLACK: No, it isn't at all. There are a number of representative of various constituency groups from Planned Parenthood to the National Abortion Rights Action League to the Heritage Foundation that will speak both pro and -- for and against this candidate; most of them against.</s>VAN SUSTEREN: OK, many thanks to CNN congressional correspondent Chris Black and our senior political analyst, Bill Schneider. In a minute, the bigger picture: John Ashcroft's Justice Department in George W. Bush's administration, when THE POINT returns.</s>VAN SUSTEREN: Joining me now to assess day two of the Ashcroft confirmation hearings are, here in Washington, "Time" magazine justice correspondent Elaine Shannon and "The Weekly Standard's" senior writer Christopher Caldwell. And joining us from St. Louis is Christine Bertelson. She's editorial-page editor for the "St. Louis Post- Dispatch." Christine, first to you: Senator Biden certainly gave former Senator Ashcroft a hard time about giving an interview to "Southern Partisan" magazine. He said it reflected incredible -- incredible insensitivity. Your state knows Senator Ashcroft. Is he a racist or is he not?</s>CHRISTINE BERTELSON, "ST. LOUIS POST-DISPATCH": I don't think he's a racist, nor do I think he's a champion for civil rights. I think, when you look at his record on school desegregation in St. Louis, on Ronnie White, on Bill Lann Lee, when you look at all those positions as a whole, I think you can you say that this guy is not a champion of civil rights, which does not make him a racist. I think he is absolutely insensitive to a lot of the concerns of African-Americans. The black leadership in St. Louis is opposed to his nomination. They are very concerned about him becoming attorney general. But I would not call him a racist. But I think you can absolutely raise a legitimate question about his sensitivity.</s>VAN SUSTEREN: Elaine, you wrote an article suggesting that a confirmation hearing is like a strip search. Is that the description you would give today what John Ashcroft went through?</s>ELAINE SHANNON, JUSTICE CORRESPONDENT, "TIME": I'm not quite sure those were my words. We do group journalism. But, certainly, there was a -- there were some very tough questions, particularly Joe Biden, as well as Ted Kennedy. On the other hand, you know, talk is talk. There is a lot of it in Washington. And, at the end of day, it looks like he is going to go through. Even Biden said that.</s>VAN SUSTEREN: But do you think, Elaine -- I mean, the way that Senator Biden was talking to the senator, he really said to him -- he was trying to send him a message that he was ashamed of him, some of the things he did. Do you think it impinged upon Senator Ashcroft, some of the issues, some of the racial issues?</s>SHANNON: Well, I thought it was very interesting the way he said: Well, you know, looking back on it, I should have vetted "Southern Partisan." I didn't really know what it was -- Biden saying: Well, how could you not -- you know, how could you not ask? And then he wouldn't disavow -- he wouldn't say that he would never speak at Bob Jones. I mean, he says it depends on their philosophy -- things like that. Ashcroft was very good, I thought -- very smooth. But, at the end of day, I think people will believe that he was saying what he was -- he was being deliberately vague in order to get confirmed. And I think he will get confirmed.</s>VAN SUSTEREN: Chris, how was the performance today of Senator Ashcroft?</s>CHRISTOPHER CALDWELL, "THE WEEKLY STANDARD": I was pretty impressed with it. I think that he was much more focused and much clearer than he actually had to be. There was no real shading of the sort you saw, say, in the David Souter Supreme Court confirmation. I was very impressed by his not ruling out speaking at Bob Jones University. And I thought it was a good answer.</s>VAN SUSTEREN: But, you know, he was sort of vague about that, about whether he would ever speak again at the Bob Jones University. And I think it was Senator Leahy who said to him: Why don't you give back the degree you got?</s>CALDWELL: Well, he pretty explicitly repudiated racism, which, I think, was all -- was all anyone was asking him to do. And then he said he would go if he thought he could be of some help -- that is, he left open the possibility of going there to lecture them or to dress them down. I thought it was very impressively done.</s>VAN SUSTEREN: Christine, so everyone says here that Senator -- former Senator Ashcroft is not a racist. And many of his colleagues -- I think all his colleagues also say that. But you have the issue in St. Louis, a rather tortured history about desegregation and the failure to desegregate. Is that a problem that haunts Senator Ashcroft? Or was the problem -- are the problems you experienced in St. Louis somebody else's problem?</s>BERTELSON: No, absolutely. I think it's an issue that haunts Senator Ashcroft. It also haunts our current attorney general, Jay Nixon. The schools in St. Louis still are segregated, in my view. They are not -- they don't have the opportunities that kids who go to the county schools in St. Louis have. I think Ashcroft sought to limit the state's liability in that case. He denied that the state was responsible for the segregating of the schools, which the courts later said absolutely the state was complicit in that. He opposed the implementation of a voluntary desegregation plan, calling it mandatory bussing. He used it as an issue in his re-election campaign. I think you could you say safely that he is not a champion of desegregation of schools, even though he says that he thinks racism is wrong, he thinks segregation is wrong. He wasn't putting his best foot forward if he wanted to integrate the schools.</s>VAN SUSTEREN: But you know, Christine, I just don't -- I'm not fully convinced of this issue on the desegregation. On the other hand, it's -- as you say, that didn't put his best foot forward. But it's a serious problem in St. Louis: desegregation. And the question, I guess, to have you address is: Did he do all that he could or should do to desegregate the schools, or did he stand in the way?</s>BERTELSON: I think that you could say by not -- by not being an advocate, he stood in the way. I mean, it's sort of the same issue of passivism and activism. If you don't help, does that mean that you are hurting? Not quite the same thing, but certain people in St. Louis -- certainly the black leadership -- would say that, by not helping, you are hurting. And I think the St. Louis schools are still in that situation.</s>VAN SUSTEREN: Elaine -- and Elaine, and that seems to be what set Senator Kennedy on fire today, the fact that he didn't do something and should have done. Yet it seems that that's not going to be much of an impact in terms of the vote, right?</s>SHANNON: That's the way it looks. This reminds me of what we used to say in the South: A progressive was somebody who didn't throw rocks at the school bus, which -- you know, the same thing is true in the border states. And that's very troubling to all of us, everybody who does believe in equal justice. You know, you have to get out there or be something. But the Republican leadership has been very clear to all the members that this is not a choice for them, that they have to vote a certain way. And then there are going to be a few Democratic conservatives like Zell Miller who also vote for Ashcroft.</s>VAN SUSTEREN: And Chris, that raises the point that Zell Miller is going to vote for Ashcroft. Is it over because that at least guarantees 51?</s>CALDWELL: Well, it's not quite over because there are still some wavering Republicans. But Ashcroft looks very good. I think the core of the case against him is abortion. And that's where his foes are on strongest ground. I think as soon you get into desegregation, you find most of the country calling it bussing. As soon as you get into Ronnie White, you find most of the country calling it coddling criminals. And so Ashcroft gets stronger the further the discussion gets from abortion.</s>VAN SUSTEREN: So, Chris, let me raise that issue of Judge Ronnie White, who is on the Supreme Court of the state of Missouri. Could that make a significant difference tomorrow? Could his testimony have an impact on whether or not former Senator Ashcroft actually does get confirmed?</s>BERTELSON: I think it may actually help him. Blocking Ronnie White's nomination had a lot to do with Missouri politics. It was not John Ashcroft's finest hour. But people across the county who don't really follow Missouri politics closely are going to see it as a return to the old Reagan-issue alignment, which definitely favored Republicans. I think when they hear the details of the crime on which White tried to block the administration of the capital punishment, I think people will wind up more sympathetic to Ashcroft.</s>VAN SUSTEREN: You know, but you say it wasn't his finest hour. But we are really looking for someone who is going to have a lot of fine hours. And if tomorrow, if Judge Ronnie White testifies, and he isn't soft on crime as former Senator Ashcroft says, and he isn't as bad on the death penalty as Senator Ashcroft says, and if it looks like Senator Ashcroft was just waging a political campaign to keep a black man off the federal bench, don't you think that could change people's minds?</s>CALDWELL: I think Ashcroft is pretty well covered on the racial issue. He's voted for -- to confirm 26 out of 27 black nominees. No, I think that Ashcroft -- you can't get too far right on the capital punishment issue unfortunately, but I think Ashcroft is in the driver's seat on that one.</s>VAN SUSTEREN: Christine, is there anything about Judge White -- is that the secret weapon for those who do not want him to be attorney general, or should we expect tomorrow, his testimony will be predictable in the sense that it won't hurt the senator.</s>BERTELSON: I think it will be a very emotional day and I think there are three possibilities for why Ashcroft blocked the nomination: it could have been racism, it could have been for political expediency, and it could have been on White's record. If we think he misrepresented White's record, any one of those three reasons is enough to have some cynicism about Ashcroft's motives and blocking White's nomination.</s>VAN SUSTEREN: Elaine, if he misrepresented Judge White's record, is that something the Senate can or will or should overlook?</s>SHANNON: Well, I don't think so. I think all records should be represented exactly as they are, but I'm just a reporter. I mean the fact...</s>VAN SUSTEREN: Will they overlook it?</s>SHANNON: Possibly, but what does misrepresentation mean? It's a very subjective judgment, and a lot of people are going to say, well, Ashcroft was for victims of crime.</s>VAN SUSTEREN: All right, unfortunately we are out of time for this discussion. My thanks to Elaine Shannon, Christopher Caldwell, and Christine Bertelson. Next: an unfair advantage or an unfair law? The case of professional golf against one particular professional golfer, when THE POINT returns.</s>VAN SUSTEREN: You've got to love the law, but it isn't science. The result often depends on the frightening proposition of who decides the case. Tonight's "Final Point": the law is in the eye of the beholder. Golfer Casey Martin has a congenital disorder that causes pain, malformation, and atrophy in his right leg. Walking creates a significant risk of fracture and hemorrhage. In spite of this, he's an amazing golfer, and he wants to participate in the PGA Tour. The PGA Tour says, sure, but when you get on the golf course, you must walk. He says, I'm disabled, I need a cart. The PGA says, sorry, those are the rules. He says, there's a federal law: the Americans with Disabilities Act. The PGA says, sorry, it doesn't apply. Now, the Supreme Court must decide. The case argued today is about definitions. The term in question is "public accommodations." The Americans with Disabilities Act actually defines "public accommodation, " and lists golf courses as an example of one. Martin won his case in the lower courts, but the PGA appealed; and if it wins, Martin says his career is over.</s>CASEY MARTIN, GOLFER: I would do everything I could to keep playing golf, but, realistically, if it's a negative response from the courts, and the tour won't grant an exemption, then. for all intents and purposes, I'm done, but hopefully that won't happen.</s>VAN SUSTEREN: The PGA says, while the spectator area of a golf course is a "public accommodation," the competitor area is not, because it is specifically roped off, to prevent public entry. The problem: either argument can be rationally supported by the law. Now what? My take: Be inclusive, not exclusive here. Give Casey Martin the chance to compete. He's a talented athlete who's an inspiration to all -- those with disabilities and those without. Let me know what you think. Send an e-mail to askgreta@cnn.com. That's one word, askgreta. That's all for tonight. I'm Greta Van Susteren in Washington. Next, Peter Jennings is the guest on "LARRY KING LIVE."