The Senate confirmation hearings on the proposed appointment of John Ashcroft as attorney general offered little respite from a season of political bad news.
First, it seems clear now that, barring some unforeseen last-minute development, Ashcroft will be confirmed. This alone would be bad enough -- a conjoining of fearsome power with reactionary politics. The Office of the Attorney General makes all manner of crucial decisions regarding the administration of justice that are beyond the power of the press, the Congress, the White House, or the courts to oversee effectively on an ongoing basis. And John Ashcroft, despite his sudden amiability and professed concern with protecting the rights of all Americans, is a militant, indeed truculent, right-winger. He is hostile to women's rights over their reproductive capacities and hostile to the aspirations of gays and lesbians who seek equitable treatment. He is friendly with anti-black bigots such at the authorities at Bob Jones University who bestowed an honorary degree upon him and friendly, too, with the fanatical wing of the gun lobby.
Second, Ashcroft will attain his new post with the aid of an appreciable number of Democrats. Georgia Senator Zell Miller was the first Democrat to announce that he would vote to confirm, stating that, "a president should be able to select his own team." Others are likely to follow out of caution, a sense of senatorial camaraderie, sentimental gullibility, agreement with much of Ashcroft's agenda, or a calculation that it is simply unwise to invest much political capital in stopping Ashcroft insofar as a replacement might be nearly as bad. Senate Democratic Leader Tom Daschle of South Dakota has said that he will not support a filibuster of any of President Bush's cabinet nominees.
The inability -- no, the unwillingness -- of Senate Democrats to block Ashcroft sadly highlights the weakness of the Democratic Party as a vehicle for progressive politics and its inferiority to the Republicans in terms of political infighting. Imagine the steps that Senator John Ashcroft (or Jesse Helms or Charles E. Grassley or Robert C. Smith or Trent Lott) would have taken if a Democratic president had nominated as attorney general Laurence Tribe, who is not nearly as progressive as Ashcroft is reactionary. The right wing Republicans (and their journalistic, lobbying, and think tank allies) would pull out all the stops to prevent the confirmation of a genuine, self-conscious, and publicly identified progressive. We don't have to imagine. We simply have to recall how the Senate Republicans dealt with Clinton nominees who were deemed to be ideologically unsuitable. Bill Lann Lee never attained Senate confirmation as merely an assistant attorney general because Senate Republicans objected to his advocacy in favor of affirmative action. Yet some of the same Republican senators who objected to Lee on ideological grounds are now saying that all that should matter is personal integrity and the willingness of the nominee to swear that he will follow the law and not his own personal policy preferences.
Third, the Ashcroft hearings added to the smog of deception that is a deeply ingrained part of our politics. At the same time that senators constantly invoked "honesty" and "sincerity" as virtues, dishonesty and insincerity were the accepted coinage of discussion. Ashcroft's "confirmation conversion" from fundamentalist tribune to restrained public servant, provoked a bit of comment from his former colleagues and the press, but not much, because insiders on all sides know that saying what you don't believe is how the game is played. You say what you must in order to gain sufficient votes for confirmation, you attain the reins of power, and then you go on to pursue your agenda to the extent that circumstances permit regardless of your earlier declarations. Confirmation hearings, in other words, are largely exercises in personal degradation and ritualized lying. Before a person is allowed to ascend to the powerful office he seeks, he must abase himself by deceptively cloaking, denying, or at least minimizing views that have attracted significant opposition.
According to Ashcroft, the religious tenets to which he adheres deem abortion to be murder. Yet in the very next breath he claims that he will not permit his personal religious beliefs to sway him in the slightest when it comes to enforcing existing laws, even those that protect places where, in his view, mass murder is being perpetrated. There is a tension here that cannot satisfactorily be reconciled by the patently evasive responses that Ashcroft offered under questioning. Either his religious beliefs do not count for much or he is lying for the purpose of gaining confirmation so that he will obtain the power to push the society closer to his terrifying vision of the good society. He counted on the political and intellectual weakness of his opponents to enable him to escape having to explain himself candidly and based on the hearings he wagered correctly.
The dishonesty that suffused the proceedings without adequate ventilation also surfaced in Ashcroft's descriptions of two episodes in which he unrelentingly opposed Clinton appointees. Ashcroft led opposition to James Hormel, whom Clinton nominated to be ambassador to Luxembourg. Hormel is openly gay. Ashcroft obviously opposed him on that basis, which should come as no surprise. After all, Ashcroft is a "man of faith" and his faith decrees unequivocally that homosexuality is an abomination. However, when Senator Patrick Leahy asked Ashcroft if he had tried to block the ambassadorial appointment because Hormel is gay, our attorney general designate stated flatly under oath "I did not" -- a lie that is only good to the extent that it indicates some advance in the struggle against anti-gay prejudice. I suppose that we should be happy that Ashcroft felt that he could not afford to be truthful.
As a senator, Ashcroft also led the effort to reject Ronnie White, a Missouri Supreme Court judge whom Clinton nominated for a post on the federal trial bench. Previously, Ashcroft and White had butted heads over abortion when Ashcroft was governor of Missouri and White a state senator. Notwithstanding their earlier skirmish, Senator Ashcroft had initially indicated that he would not attempt to block White. Later, however, during a hard-fought (and losing) campaign for re-election to the Senate, Ashcroft perceived that he might be able to gain some political mileage by making an issue out of capital punishment. He isolated a dissenting opinion in which Judge White maintained that a defendant in a capital case had been deprived of a fair trial by the absence of effective assistance of counsel, asserted that this opinion demonstrated White's "pro-criminal" leanings, and used it as the basis for stopping the appointment which was done along a strict party-line vote. Ashcroft continues to maintain that his opposition to White stemmed solely from concerns he had about White's views regarding the administration of criminal justice. This explanation, however, is palpably false.
Ashcroft's opponents have attempted to dramatize his opportunistic scuttling of White's nomination. Many hurt their cause, however, by stressing that Ronnie White was a black judge and insinuating that his race played a significant role in Ashcroft's decision to block him. Their insinuation boomeranged because they failed to present convincing evidence that White's blackness was the likely "but for" cause of Ashcroft's opposition. The reality is that Ashcroft would almost certainly have torpedoed a white Clinton nominee with the same ruthless determination as he attacked White's nomination. By making wobbly allegations of racial discrimination that they could not clearly substantiate, Ashcroft's opponents left themselves open to charges that they themselves were playing the race card. Ashcroft's opponents thus inadvertently helped him as one Democratic senator after another felt called upon to aver that their former colleague was no "racist."
It is appalling, of course, that the mere absence of iron-clad proof of racism has become tantamount to a clean bill of health with respect to the racial hygiene of the nation's most powerful political figures. But that is what has happened. Instead of making a demonstrated commitment to racial justice part of the minimum standard for promotion to the attorney general's office, the baseline standard is merely the absence of irrefutable evidence that a nominee actively supports the Ku Klux Klan. The degradation of our standards of evaluation were vividly mirrored when Ashcroft asserted at one point, "I repudiate racism. Had I been fighting the Civil War, I would have fought with Grant. . . . Slavery is abhorrent." Put aside that there were many white supremacists, including Grant himself, who supported the Union. Put aside that there were many white supremacists who abhorred slavery. The crucial fact is that Ashcroft's record shows little in the way of authentic support for the great struggles for racial justice that have taken place in his own lifetime. And nothing in his testimony suggests an inclination to do better in the future.
Fourth, while many progressives have shown admirable pluck in their vocal opposition to Ashcroft, they have also shown a regrettable tendency to resort to rhetorical formulas that should be eschewed. For example, progressives ought not to condemn Ashcroft because he is an "extremist" or "outside the mainstream." Abolitionists were "extremists" and racial egalitarians were certainly "outside the mainstream" of a society that generally accepted Jim Crow segregation. What matters is the substance of a person's politics -- not its relative position on an abstract spectrum. What is objectionable about Ashcroft as attorney general is not the distance of his politics from the middle of the American ideological spectrum but the concrete aims of his politics -- the aim to strip women of hard won rights over their biological destiny, the aim to keep gays ostracized, the aim to prevent current arrangements that privilege certain sectors of the society (e.g., the affluent, men, whites, straights) from being encroached upon by policies that would redistribute power to historically disfavored sectors of the society (e.g., the poor, women, colored people, gays). In other words, progressives should quit valorizing "moderation" in their efforts to oppose the right-wing. Compared with David Duke Ashcroft is "moderate." But so what? The content of his politics makes him a person that should be prevented from directing the Department of Justice.
Another mistaken critique is the one that asserts that Ashcroft is an unsuitable nominee because he fervently opposes existing law that he should be obliged to enforce whatever his personal views. Would these critics be saying the same thing if existing law permitted or required racial segregation and wholesale discrimination against women? Under those circumstances, wouldn't progressives want the attorney general to mobilize the energies of the Justice Department against wrong-headed but nonetheless established laws? There is nothing abstractly virtuous about an attorney general either enforcing or undermining a given law. What matters is the substance of the law. The appropriate objection to Ashcroft, then, is not that he will fail to enforce enacted legislation; some enacted legislation ought not be enforced. The appropriate objection is that, given the content of his politics, he will hobble certain laws that are good, progressive legislation.
Some Democrats believe that permitting Ashcroft to become attorney general after hearings have raised doubts about his fitness to serve is ultimately a good thing because his presence in the cabinet will provide vivid rallying point in the years and battles to come. That is, I think, a mistake. The attorney general's office is sufficiently important and John Ashcroft sufficiently bad that Democrats should invest what it takes to defeat him. The Senate Democrats could do so if they possessed sufficient political will. But, alas, they do not. They are simply not as tough, united, disciplined, fervent, and audacious as their Republican foes. In losing the battle over Ashcroft, however, the Democratic Party risks more than losing a single engagement. It risks losing the allegiance of ever larger numbers of people who yearn for politicians who are willing to fight to the bitter end for progressive aims, even in the face of possible or even likely defeat. Given the impact of the Nader campaign on the recent presidential election -- and the consistently depressed level of voter turnout -- that risk should be taken more seriously.
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