New York Times Opinion
January 12, 2001

The Ashcroft Nomination

We approach the task of analyzing John Ashcroft's selection as attorney general with two basic assumptions. One is that we accept the statements of Democratic and Republican senators that Mr. Ashcroft is regarded as a man of deep commitment and personal probity. Our other assumption is that a new president deserves in normal circumstances to have his appointments approved and that standard differences in party philosophy are not adequate reason for blocking an appointment.

But the president's right is not unrestricted. That is why the Constitution provides for Senate confirmation. The Senate has an obligation to examine seriously the issue of whether a cabinet appointee will carry out his duties in a way that serves the interests of all citizens.

The Senate's responsibility is especially heavy in regard to the position of attorney general, since that person is the custodian of laws, constitutional rights and oversight responsibilities that protect the liberties of Americans and ensure the fair administration of justice. There are always differences of interpretation between parties and individuals. But nowhere is it contemplated under law or civic tradition that an attorney general would try to remake law through selective enforcement or deprive citizens of constitutional rights by pursuing cases designed to invite the federal courts to obliterate those rights.

This is where Mr. Ashcroft's long record in public office comes into play. The key question raised by that record is a momentous one that reaches beyond the testimony that he is a man of conviction and that he reflects the preferences of President-elect George W. Bush. The question is whether Mr. Ashcroft, given his passionate personal views and activist record, would use his powers as attorney general to enforce federal laws and constitutionally protected rights, including those that he vigorously opposes. Every citizen is entitled to that assurance from the Justice Department, regardless of which party wins the White House. Mr. Ashcroft's record and his fervent activism against, for example, abortion rights and court-ordered desegregation plans have understandably raised fears that he would use the office to undermine or overturn laws and constitutional protections that he opposes as a matter of personal conviction. That would be a distortion of the role of attorney general.

Mr. Ashcroft's record of trying to outlaw abortion suggests that he would not be a guardian of women's right to reproductive choice as provided by the Supreme Court's decision in Roe v Wade. Mr. Ashcroft supports a constitutional amendment that would outlaw abortion even in cases of incest and rape and that would criminalize several commonly used forms of contraception. As Missouri attorney general and governor, and more recently in the Senate, he repeatedly used his office to try to push through severe new restrictions on women's reproductive freedom as part of an effort to get the Supreme Court to overturn Roe v. Wade. As attorney general he could throw the weight of the government behind new strategies to defeat abortion in the Supreme Court. There is also reason to worry whether he would enforce laws that insure access to abortion clinics by limiting violent or obstructive demonstrations by abortion opponents.

Mr. Ashcroft's religion-based approach to public policy issues and his disdain for Supreme Court rulings barring official school prayer suggest an inclination to weaken the wall between church and state. During his political career he has supported school prayer, religious-school vouchers and having public services delivered by charities run by religious organizations without adequate protection to insure that those services are delivered in a secular manner. Questioning whether Mr. Ashcroft's religious convictions might unduly influence Justice Department policies ought not to be misrepresented by his supporters as an assault against his faith, which is clearly deeply held.

Mr. Ashcroft's record of frequently offering constitutional amendments, including an amendment to streamline the process of altering the Constitution, suggests a radical approach to the nation's founding charter rather than a conservative approach to preserving it. He has proposed amending the Constitution to ban flag-burning, to outlaw abortion and to impose term limits. That is the record of someone who sees the Constitution as a billboard for partisan causes.

Many points in Mr. Ashcroft's career suggest that he would not necessarily preserve the Justice Department's modern tradition of defending civil liberties and minority rights. As Missouri's attorney general, Mr. Ashcroft worked in coordination with the Reagan administration to try to block institution of a voluntary busing plan in the St. Louis area that was developed after a federal court ruled that the state had acted unconstitutionally in maintaining segregation of schools. As a senator he opposed any form of affirmative action, and rejected efforts to revise federal law to recognize hate crimes based on a victim's sexual orientation. He also symbolically demonstrated insensitivity to racial matters by accepting an honorary degree from Bob Jones University in 1999 and delivering the school's commencement address. 

On the vital matter of selecting federal judges and Supreme Court justices, an area where the attorney general wields great influence, it seems clear that under Mr. Ashcroft's leadership, moderate judges would have little chance of appointment. In recent years Mr. Ashcroft was a ringleader in the effort to block confirmation of well-qualified moderates whom President Clinton nominated for judicial appointment. He succeeded in defeating the nomination of a respected black Missouri Supreme Court justice, Ronnie White, on a party-line vote based on the manufactured charge that Justice White was "pro-criminal" and against law enforcement.

The Senate should not rubber-stamp this appointment, nor should it be guided by the misplaced suggestion by Trent Lott, the majority leader, that serious doubts about Mr. Ashcroft simply be set aside to preserve bipartisan harmony. The duty of the Senate is to look searchingly into Mr. Ashcroft's record, to press him about his intentions and to carefully weigh the answers he gives during his confirmation hearings. 

If the decision had to be made today based solely on an analysis of Mr. Ashcroft's record and the duties of the attorney general, we would oppose his confirmation. But he deserves a chance to explain his vision of the job as it relates to upholding existing law and defending civil liberties and constitutional rights. The burden will be on Mr. Ashcroft to demonstrate that he can move beyond his record and his views to enforce the laws fairly and impartially.