The Fight for Justice

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o Lott administered daily medicine to wobbly G.O.P. moderates; the main concern was Pennsylvania's Arlen Specter, an experienced renegade who is sensitive to his state's powerful labor groups. Late last week, Republican sources tell TIME, Ashcroft was quietly advising allies that he had secured private promises of support from 11 Senate Democrats--which, if they held tight, would be more than enough to earn him the job. Just in case, the Ashcroft Defense League rolled out its counterattack last week. Grass-roots campaigns and phone banks were slapped together. Pat Robertson, head of the Christian Coalition, promised to deliver pro-Ashcroft phone messages to half a million of his supporters.

It has been clear since the day Bush announced the nomination that the flash point would be Ashcroft's opposition to Ronnie White, the first black Missouri Supreme Court justice, whom Ashcroft almost single-handedly shredded when Clinton nominated him for the federal bench. First, Ashcroft held up the nomination for nearly two years, as he had many other Clinton appointments. Then, as the vote neared, Ashcroft homed in on a single dissent in a death-penalty case to argue that White was "pro-criminal." White's defenders said this amounted to pure character assassination; White had voted to uphold the death penalty in 41 out of 59 cases. Four of Ashcroft's judicial nominees, they pointed out, voted to overturn the death penalty more often than White had. But that didn't stop the Senate from voting White down along party lines, the first judicial nominee to be defeated on the Senate floor since Robert Bork 12 years earlier.

As so often happens, the White case was more complicated than it looked. Civil rights groups point out that Ashcroft also opposed Clinton's nomination of David Satcher, a black physician, for Surgeon General. But Ashcroft cited Satcher's support of partial-birth abortion as the basis for his opposition, and it is possible--many in Missouri think it probable--that White too ran afoul of Ashcroft because of abortion. White helped block a strong antiabortion measure when Ashcroft was Governor, and White was a committee chair in the state assembly in the early 1990s. Ashcroft may have viewed that bill as his last chance of getting a test case before the Supreme Court to overturn Roe v. Wade.

Ashcroft brought White down but hurt himself and some in his party in the process. Republican moderates recall a G.O.P. lunch just before the White vote, when Ashcroft and fellow Missouri Senator Christopher ("Kit") Bond stood up to galvanize the caucus to vote en bloc against White. Senators usually defer to the home-state lawmaker on nominations and rarely investigate a nominee's background. But neither Ashcroft nor Bond ever mentioned during the meeting that White is African American. This may have been an example of color-blind politics, but for the moderates, voting against a black judge was always politically dangerous, and many might not have done so if they had known White was black. Some even felt that Ashcroft had deliberately deceived them.

And yet this episode, which they all cite today, has since had a strange way of uniting moderate Republicans behind Ashcroft. They became equally angry over what they considered a mudslinging campaign from the White House, civil rights groups and the Judiciary Committee's ranking Democrat, Patrick Leahy, in the aftermath of the vote. "Every Republican who voted against White was branded a racist," says Republican Committee member Michael DeWine, who is proud of his civil rights record. However painful it will be to relive the White vote, it would be hard for any Republican to change his mind now.

If White hopes for any kind of vindication when he is finally able to face his accuser in the ring, it may mean he does not know what the Republicans are prepared to do to win this. They threatened to call Kenny Jones, the Moniteau County, Mo., sheriff whose wife and three deputies were killed in 1991 by James Johnson, the convicted killer whom White wanted to be granted a retrial. Even beyond that case, the Republicans are prepared to argue that White was unfit for the federal bench; they are threatening to dredge up his law-school grades, his bar exam, his record as a lawyer and even details of his family life to prove Ashcroft was right about White. "People who knew about Ronnie White were willing to leave a lot of this alone," says an Ashcroft ally, "but now that's not going to be possible." But Republicans are also lining up counterarguments to the civil rights assault. Ashcroft, they point out as an example, signed Missouri's first hate-crime law and has voted for 26 out of 28 black judges. Besides, they add, he is squeaky clean, smart and a more experienced prosecutor than any of the past five Attorneys General.