Political (and Other) Casualties in Missouri

The 2000 Senate campaign in my home state of Missouri began almost as soon as the 1998 elections were over. For a year now, everyone has known that Gov. Mel Carnahan, a moderate Democrat, will be challenging the incumbent Sen. John Ashcroft (R-Mo.), a conservative Republican and a favorite of the Christian Coalition. With such a stark contrast between the candidates' positions, there's no question that some otherwise forgettable decisions might take on great political significance and that impartial government might fall by the wayside. Unfortunately, with such a long race, the casualties--including some very talented people--are already mounting.

For two years, Missouri Supreme Court Judge Ronnie L. White, the state's first African-American Supreme Court judge, languished somewhere in the Senate Judiciary Committee, his nomination to a Federal District Court post on hold. During a 1998 re-election campaign, Missouri's slightly less conservative senator, Kit Bond, said White had the "necessary qualifications and character" for the position and pledged to bring his nomination to the floor for a vote.

White was recommended by the committee in July, over Ashcroft's objections, and a vilification campaign against White soon began in earnest. White, said Ashcroft, was a "judicial activist," one of that horrible breed of tyrants with gavels who try to re-write the law for their own purposes instead of interpreting it justly. As evidence, Ashcroft lambasted White for having voted 14 times to reverse a death penalty decision, proving that he was a protector of the guilty and against law and order. One Ashcroft fundraiser resigned in protest of the "marathon public crucifixion and misinformation campaign."

There were many issues on which Ashcroft could have picked to challenge White, but his choice of the death penalty was especially astute given the state of Missouri politics. Gov. Carnahan is no softie on crime; his administration presided over more executions than any in recent memory. Yet in January, at the personal request of Pope John Paul II, Carnahan agreed to commute to life in prison the sentence of murderer Darrell Mease, whose execution was to be during the Pope's visit to St. Louis.

The political outcry was immediate, and Ashcroft, eager to capitalize on the decision, later invited the family of Mease's victims to attend hearings. Since the Pope's visit, Carnahan has been doing all he can to look tough--as one aide told the Washington Post, "Mel's been stacking up bodies right and left"--but the death penalty is still a sore spot in his campaign. So when Ashcroft described Judge White as "pro-criminal and activist" on the Senate floor, he was making a perfect political maneuver. Yet as Ashcroft surely knew, the description didn't quite match the man.

As evidence for his assertions, Ashcroft cited the case of Missouri v. Johnson, where White wrote one of his few unaccompanied dissents. James Johnson had killed several law-enforcement officers, and the defense argued that he had been suffering from post-traumatic stress disorder due to his experience in Vietnam. In opening arguments, they cited a rope perimeter that Johnson had set up to guard the house from enemies, since "that's what you do in Vietnam, you renourish and rest while your buddies stand guard duty."

Unfortunately, the defense had neglected to talk to the highway patrol officers who had investigated the scene, who testified that they set up the perimeter themselves. The prosecution capitalized on the error, dismissing the Vietnam scenario as a ludicrous ploy, and Johnson got the death sentence. The majority on the Missouri Supreme Court considered the defense's preparation good enough to let the result stand, because their mistake was not the "most likely" reason for the verdict and sentence.

In his dissent, Judge White argued that the standard applied by the majority was unnecessarily restrictive. Expert testimony on Johnson's sanity had gone both ways, and U.S. Supreme Court precedent, White stated, would allow a new trial or sentencing if there was a "reasonable probability" of a different outcome had the defense lawyers not shredded their credibility at the outset. "While I share the majority's horror at this carnage," White wrote, "I cannot uphold this as an acceptable standard of representation for a defendant accused of capital murder."

Whatever one thinks of the legal reasoning employed in White's dissent, it was clearly the precedent-based conclusion of a reasonable jurist, not the ravings of a black-robed subversive intent on rewriting the law. As part of his political move, however, Ashcroft said the reasoning was based on "an outrageous technicality" and accused White of harbouring a "personal political agenda."

After a furious lobbying campaign, White was rejected by the full Senate in October on a party-line vote. Bond decided to vote with his fellow Republicans against the judge he had earlier called "a man of the highest integrity and honor," as did presidential candidate and Judiciary chairman Orrin G. Hatch, who had previously called White "a fine man."

The nomination is dead now, politics having excluded a worthy candidate from the bench, but it still causes tempers to flare in Missouri. Because many minority nominees are still held up in committee, Ashcroft and the Senate have been accused of racism. A rally was held in St. Louis to protest White's rejection only a week ago, and Judge White is occasionally referred to by supporters as "Judge Not White Enough."

However, the spurious charge of racism obscures a greater threat. Ashcroft began his campaign against White by arguing that he had voted to overturn a death penalty 14 times. Later, the tactics became more sophisticated, and White's votes were compared to others on the court (some of whom, Ashcroft appointees, had voted against more death penalties than he), but the count-the-numbers approach betrays a cynical assumption that any vote to reverse the death penalty is suspect, that the courts should rubber-stamp death sentences instead of conducting meaningful review.

Ashcroft's campaign against Judge White-- and whatever success it may bring to his campaign against Carnahan in 2000--sends the message to all state judges that if they want to get on the federal bench, they'd better start upholding some death penalties. When a case is hard, as Judge White found Missouri v. Johnson, and when the defendant's right to a new trial is unclear, how will those judges decide? The perverse political incentives make it seem inevitable that a defendant who may not deserve the death penalty will some day receive it because the judges are too afraid to strike it down.

This is the real danger when campaigning takes precedence over government. Judge White may have been the first casualty of this Senate race, but many other casualties may be yet to come.

Stephen E. Sachs '02, a Crimson editor, is a history concentrator in Quincy House.