POLITICS JANUARY 29, 2001
The public outcry against John Ashcroft's nomination to be attorney general has been remarkable not only for its ideological intensity but for its intellectual confusion. Whether they're women's groups on abortion, civil rights groups on race, or religious minorities on church-state separation, Ashcroft's opponents have largely been protesting the wrong thing. The former Missouri senator, they say, can't be trusted to enforce laws with which he disagrees--on abortion and civil rights, for example. But federal prosecutions, especially on issues of civil rights and liberties, are a small part of what the Justice Department does and an area where the attorney general ordinarily exerts little influence. Ashcroft's real power would lie not in his ability to enforce the law but in his ability to transform it: by filing briefs in the Supreme Court and recommending candidates for federal judgeships. Through the courts, he could pursue the conservative social agenda that has largely failed in the political branches.
Ashcroft's critics are alarmed about his enforcement priorities as the nation's chief prosecutor. But historically the ideology of the attorney general hasn't had much impact on prosecutions. According to David Burnham of the Transactional Records Access Clearinghouse, which collects data on federal trials, the Clinton administration's enforcement priorities closely followed those set in the Reagan and Bush years. Clinton, for instance, prosecuted an average of 134 civil rights violations per year, compared with 129 for the available Reagan years and 100 for the Bush years. These numbers are similar partly because most Justice Department prosecutions have nothing to do with the hot-button issues under discussion at Ashcroft's hearing. They largely have to do with drug crimes, which constituted more than one-third of all federal prosecutions between 1993 and 1998. In 1998, for example, there were only 146 civil rights prosecutions, compared with 30,014 narcotics- related cases and 14,616 involving immigration. And on drugs there's little partisan divide: Janet Reno supported federalizing the war on drugs, and Ashcroft would likely do the same.
The only area of federal prosecutions that sharply declined in the 1990s was guns. Referrals by the Bureau of Alcohol, Tobacco and Firearms for the prosecution of gun-law violations fell dramatically during the Clinton years, in the face of pressure from Congress after Waco. Ashcroft might well continue this trend. In general, however, individual prosecution decisions are made not by the attorney general but by local U.S. attorneys, who are appointed on the recommendation of senators from the president's party. So the hand-wringing about whether Ashcroft would enforce laws protecting abortion clinics is probably overblown: Only a handful of such attacks occur each year, and it would be hard to imagine Ashcroft overriding the decision of a local prosecutor and letting a highly publicized murderer get away with a slap on the wrist.
But if recent years have revealed the attorney general's lack of influence over prosecutions, they have also revealed his or her vast power to change the general direction of legal policy. In the past year, for instance, Reno supported the constitutionality of campaign finance reform and affirmative action in public universities and decided not to intervene in Bush v. Gore. During the Reagan administration, Ed Meese's high-profile pornography commission, while failing to establish a connection between pornography and violence against women, helped stigmatize pornography in the general culture. Meese also transformed the federal judiciary by selecting judges who shared his strict constructionist ideology. In addition, he opposed Miranda and affirmative action and asked the Supreme Court to overturn Roe and the ban on school prayer. Although the Court narrowly rejected all these proposals, Ashcroft seems likely to resurrect them. In conjunction with a like-minded solicitor general, Ashcroft could funnel the Court's conservative justices the cases they need to turn their narrow defeats into victories.
On school prayer, for example, the Court is narrowly balanced between three positions, none of which commands a clear majority. The strict separationists would strike down school vouchers and charitable choice; the proponents of religious neutrality would uphold them; and the religious supremacists would allow state-sponsored religious displays. Although Ashcroft may now claim he supports the neutrality position, his record shows that he is clearly a partisan of religious supremacy. In the Senate, he sponsored a resolution endorsing the posting of the Ten Commandments in an Alabama courthouse, despite a Supreme Court decision clearly holding that this would violate the Constitution. And he has repeatedly argued for prayer in schools. Last term, the Court rejected George W. Bush's request, as Texas governor, to authorize purportedly student-led prayer at a high school football game. If Ashcroft is confirmed, he might well ask the justices to revisit these questions.
On affirmative action, the lower courts are divided about whether racial preferences in the admissions policies of public universities violate the Constitution, and the Supreme Court may well be asked to resolve the issue. The Clinton administration recently filed briefs in lower courts supporting the constitutionality of these policies; Ashcroft almost certainly opposes them, having sponsored legislation in the Senate that would have prohibited preferences in federal contracting and employment. If the Court overturns Bakke and forbids affirmative action across the nation, it could transform the face of higher education.
On voting rights, Ashcroft vetoed a bill in Missouri that would have allowed the League of Women Voters to use the same procedures for registering voters in poor black neighborhoods that were already in place in white Republican suburbs. It will be interesting to see how Ashcroft reconciles this position with the Supreme Court's expansive vision of equal protection in Bush v. Gore, which arguably requires uniform registration and vote- counting procedures statewide. Ashcroft may have to decide whether Bush v. Gore requires the transformation of our decentralized electoral systems, as its logic suggests, or whether it was designed for the exclusive benefit of Bush. And his long-standing indifference to voting inequities may well come into play.
On abortion, Ashcroft promises to enforce the law--until he succeeds in transforming it. He has called for the overturning of Roe and has made clear his opposition to partial-birth abortion. The Supreme Court last spring, in an overly activist decision, struck down a Nebraska law that would have prohibited partial-birth abortion. If Congress passes another partial-birth law, Ashcroft will almost certainly defend its constitutionality, as he should. But, in a host of other areas, Ashcroft will have an opportunity to redirect national abortion policy in ways that could federalize the abortion debate. As the American Civil Liberties Union notes, he sponsored a human- life amendment to the Constitution that would outlaw abortion even in cases of rape and incest. In Missouri, he signed a law--later challenged in Webster- -that declared that life begins at conception and that would have prohibited all abortions at public hospitals except those necessary to save a woman's life. As senator, Ashcroft voted for the Child Custody Protection Act, which would have made it a crime for family members to help teenagers cross state lines to have an abortion. Rather than seeking to return abortion regulation to the states, in other words, Ashcroft is determined to ban abortion across the nation. And he will have opportunities to pursue this agenda before the Supreme Court.
Ashcroft's record on privacy--an area in which liberal and conservative justices are increasingly converging--offers some rays of sunlight. He has displayed a principled libertarianism that has made him skeptical of much federal surveillance of the Internet. "He really was the champion in the Senate to revise the export control laws and to put pressure on the Clinton Justice Department and the FBI to back off the key recovery scheme," which would have given the government backdoor access to all encrypted documents, says Marc Rotenberg of the Electronic Privacy Information Center. The same sensibility led Ashcroft to oppose the FBI's Carnivore e-mail surveillance system and a proposal for a national identification card.
When it comes to Internet pornography, however, Ashcroft's civil libertarianism disappears. He vigorously supported the Communications Decency Act, which would have banned indecent communications, before the Supreme Court struck it down. And he supported Congress's decision last year to force libraries and schools to adopt Internet filtering software as a condition of receiving federal funds. If new issues involving technology and pornography come before the Court, Ashcroft is likely to take a similarly hard line.
Ashcroft's power, in connection with the solicitor general, to determine the position of the United States before the Supreme Court is not the only danger. There are also judicial appointments, an area where Ashcroft's Senate career testifies to his extremism. Famously, of course, he distorted the record of Judge Ronnie White in the course of opposing his nomination to a federal court. But even more revealing are Ashcroft's votes against the most moderate and distinguished of Clinton's appellate nominees--including Merrick Garland and William Fletcher, now appellate judges in Washington, D.C., and California, respectively--on the grounds that they were extremists. Anyone who believes in good conscience that these pillars of moderation are outside the mainstream has a definition of mainstream that can be charitably described as exotic. The attorney general is not the only judge-picker, of course, but Bush's more moderate White House counsel, Alberto Gonzales, lacks Washington experience, and Ashcroft's strong views and dedication to the cause suggest that he would exert great influence.
The most common argument for Ashcroft's confirmation is that Cabinet nominees, unlike judges, serve at the president's discretion. An attorney general, the logic goes, is the president's agent, and therefore the president is entitled to appoint whomever he chooses. But if Republicans (most notably Ashcroft) really believed that, they wouldn't have opposed Lani Guinier or Bill Lann Lee. In fact, they were right to oppose those nominees as ideologically extreme, and Democrats are right to do the same today. The question for undecided Senate Democrats is not whether Ashcroft will enforce the laws on the books. It's whether they agree with the constitutional vision that now exists only in his imagination.