In Extremis

The confirmation of John Ashcroft as attorney general conjoins fearsome power with reactionary politics. The attorney general makes crucial decisions regarding the administration of justice that are beyond the power of the press, Congress, the White House, or the courts to oversee effectively on an ongoing basis. And Ashcroft, despite his sudden amiability and professed concern with protecting the rights of all Americans, remains a militant--indeed, truculent--right-winger. He is hostile to women's reproductive rights and to the aspirations of gays and lesbians who seek equitable treatment. He is friendly with antiblack bigots, such as the authorities at Bob Jones University--and friendly, too, with the fanatical wing of the gun lobby.



The Ashcroft hearings were suffused with deception. The strategy behind Ashcroft's "confirmation conversion" from fundamentalist tribune to restrained public servant is clear: Say what you must to gain enough votes for confirmation, and then pursue your agenda to the extent that circumstances permit. Ashcroft's hearings are not peculiar in this respect. What is a bit special in Ashcroft's case is that the deceptiveness is perpetrated by a man who is lauded for his supposed honesty and religious faith.



Ashcroft's religious tenets deem abortion to be murder. Yet he claims that he will not permit his personal 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 committed. There is a tension here that cannot 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 so that he will obtain the power to push America 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 these contradictions, and he seems to have wagered correctly.



Dishonesty surfaced also in Ashcroft's descriptions of two episodes in which he opposed appointees of Bill Clinton. Ashcroft led opposition to Ambassador to Luxembourg James C. Hormel, who is openly gay. This should come as no surprise. After all, Ashcroft is a "man of faith," and his faith decrees unequivocally that homosexuality is an abomination. But when Senator Patrick Leahy of Vermont asked him if he had tried to block the appointment because Hormel is gay, the attorney general designate stated flatly under oath, "I did not"--a lie that is good only to the extent that it indicates some advance in the struggle against antigay prejudice. I suppose that we should be happy that Ashcroft felt he could not afford to be truthful.



As a senator, Ashcroft also led the effort to reject Ronnie White, a black Missouri Supreme Court judge whom Clinton nominated to the federal trial bench. Previously, Ashcroft and White had butted heads over abortion when Ashcroft was governor of Missouri and White was a state legislator. Notwithstanding their earlier skirmish, Ashcroft initially indicated that he would not attempt to block White. Later, however, during a hard-fought (but losing) campaign for re-election to the Senate, Ashcroft tried to make 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. Ashcroft asserted that this opinion demonstrated White's "pro-criminal" leanings and used it--along with a solid Republican Party-line vote--to block the federal appointment. Ashcroft maintains that his opposition stemmed solely from concerns he had about White's views regarding the administration of criminal justice. This explanation, however, is palpably false.



Some of Ashcroft's opponents have portrayed his opportunistic scuttling of White's nomination as racist. This charge backfired, however, because there was no smoking gun and Ashcroft would almost certainly have torpedoed a white Clinton nominee with the same ruthless determination. By making unsubstantiated allegations of racial discrimination, Ashcroft's opponents left themselves open to charges that they were playing the race card. Thus, they 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 absence of explicit racism has become tantamount to a clean bill of health. But that is what has happened. There is no demonstrated commitment to racial justice here; a lack of irrefutable evidence that the nominee actively supports the Ku Klux Klan is considered to be sufficient. The degradation of our means of evaluation was vividly mirrored when Ashcroft asserted, "I repudiate racism. Had I been fighting the Civil War, I would have fought with [Ulysses S.] Grant... . Slavery is abhorrent." Has this become the standard? Opposition to slavery 140 years after the fact? Put aside that many white supremacists, including Grant himself, supported the Union. Put aside that many white supremacists abhorred slavery. The crucial fact is that Ashcroft's record shows little in the way of authentic support for the great struggles on behalf of racial justice that have taken place in his own lifetime. And nothing in his testimony suggests an inclination to do better in the future.


Some who opposed Ashcroft deployed rhetorical formulas that liberals ought to reject. For example, liberals should not condemn him because he is outside the mainstream. Abolitionists and racial egalitarians were once outside the mainstream of a society that generally accepted slavery and, later, Jim Crow segregation. What matters is the substance of a person's politics, not his distance from some abstract political center. The thing that is objectionable about the idea of Ashcroft as attorney general is the concrete aim of his politics: to strip women of hard-won rights to control their bodies; to keep gays ostracized; to prevent current arrangements that privilege certain sectors of society (such as the affluent, men, whites, and straights) from being encroached upon by policies that would redistribute power to historically disfavored sectors of society (such as the poor, women, people of color, and gays). In other words, liberals should quit valorizing moderation. Compared with Ku Klux Klansman David Duke, Ashcroft is moderate. But so what? The content of his politics made him someone who should be kept from directing the Department of Justice.



Other critics assert that Ashcroft is an unsuitable nominee because he fervently opposes existing laws that he should be obliged to enforce, whatever his personal views. Would these critics be saying the same thing if the 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 legislation? 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 is that, given the content of his politics, Ashcroft will hobble certain laws that represent good, progressive public policy.



Immediately after the hearings, a substantial number of Democratic senators began defecting. Zell Miller of Georgia stated that "a president should be able to select his own team." Robert Byrd of West Virginia quickly followed suit. But then Democratic opposition began to broaden and harden. Senators such as Paul Wellstone of Minnesota, Chuck Schumer of New York, and Robert Torricelli of New Jersey--all of whom had initially said nice things about Ashcroft--began to back away from their former colleague. Evan Bayh of Indiana, a self-described centrist New Democrat who envisions occupying the White House himself, announced that he would vote against Ashcroft. Senator Leahy, who chaired the confirmation hearings prior to Bush's inauguration, invoked a procedural rule that delayed a vote. New questions and doubts about Ashcroft emerged. But, in the end, the Democrats' nerve failed.



Unlike their resolute Republican counterparts, Democrats seem reluctant to stand as a unified caucus. A few Democratic liberals, such as Russ Feingold of Wisconsin and Byron Dorgan of North Dakota, apparently like Ashcroft personally. A few others were apparently bargaining with the White House to see what they might get for their states in return for their vote. Democratic Leader Tom Daschle, once he'd brokered a deal with Republican Leader Trent Lott for an equal number of committee assignments, immediately began to make soothing noises about the inappropriateness of using a filibuster to derail Ashcroft's confirmation.


The hesitance of Senate Democrats to block Ashcroft sadly highlights the weakness of the Democratic Party as a vehicle for liberal politics and its inferiority to the Republicans at political hardball. Imagine the steps that Ashcroft (or conservative GOP senators such as 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, say, Laurence Tribe, the liberal Harvard University law professor, who is not nearly as progressive as Ashcroft is reactionary. 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 even as an assistant attorney general because Senate Republicans objected to his advocacy in favor of affirmative action. Yet some of those same senators now claim 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.



Some Democrats said in private that permitting Ashcroft to become attorney general after raising doubts about his fitness is ultimately a good thing because his presence in the cabinet will provide a vivid rallying point in the years and battles to come. They will be satisfied with having put Ashcroft on the hot seat, depriving him of a broad-based vote of confidence from his former colleagues, and eliciting from him some ambiguous pledges. That is, I think, a mistake. The attorney general's office is sufficiently important and John Ashcroft is sufficiently bad for the job that Democrats should have done what it took to defeat him. The Democratic senators could do that--if they possessed the political will. But alas, they do not. They are simply not as tough, united, disciplined, fervent, self-confident, and audacious as their Republican foes. In the battle over Ashcroft, the Democratic Party risks more than losing a single engagement. It risks losing the allegiance of an ever larger number of people who yearn for politicians willing to fight to the bitter end for progressive aims. ?

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