Until last month, when Attorney General John Ashcroft knuckled under to Big Tobacco, the disasters predicted by his critics were mainly occurring under the radar. Charges of racism, homophobia and pro-life extremism had receded or been replaced by tut-tutting over his Bible-reading sessions and his support for an individual right to bear arms. To be sure, Ashcroft's major crime-control proposal, which called for harsh federal sentences for even minor gun-possession offenses, would have a disproportionate impact on minorities. His refusal to halt executions while he studied the causes of racial disparity in federal death penalty prosecutions barely masked his enthusiasm for the ultimate punishment. And he was dragging his heels on providing federal marshals to protect an abortion clinic doctor who had already been shot and on implementing a consent decree that would impose far-reaching change on the scandal-ridden Los Angeles Police Department.
But burying the enormous federal lawsuit against Philip Morris, RJ Reynolds et al. is a warning that Ashcroft is not only backing away from a federal role in curbing corporate greed but also planning reversals in other areas.
In general, Ashcroft has not invoked the hard-right ideology for which he was known as a US senator and governor of Missouri, presumably to allay suspicions that he got his job on the basis of a "confirmation conversion." The selection of experienced federal prosecutors like Richard Mueller to head the FBI, which Ashcroft has moved to rein in, and Michael Chertoff to lead the criminal division seems designed to avoid butting heads with critics who saw him as an extremist. Even the way he rationalized settlement negotiations in the tobacco case--claiming it was a weak case, rather than finding it a politically unpalatable assault on free enterprise--suggested an effort to conceal contradictions in the assurances of moderation he made to the Senate. His caution is part of the pattern that is emerging in Ashcroft's leadership at Justice: soothing rhetoric and superficial approaches to high-visibility matters; delay and obstruction on more complex and controversial issues; and contorted definitions of pressing problems--gun violence, police misconduct--to justify a right-wing vision of DOJ priorities.
The decision to try to settle the tobacco case indicates that even without overt, full-scale efforts to transform the legal landscape, Ashcroft can whittle away rights and regulations that define the fragile and partial social progress of this country in the twentieth century. As the Administration's most prominent emblem of religious fundamentalism and laissez-faire economics, he is now--sometimes on his own, sometimes following the dictates of the White House general counsel and associates--moving the agenda on civil rights, police misconduct, abortion, sentencing, drug and gun enforcement, and corporate (non)regulation predicted by his critics. Whether he succeeds will depend on his wiliness, the power of the network of lawyers who share his ideology and support his efforts, and the effectiveness of progressive forces in Congress and elsewhere in fighting back.
Ashcroft's influence will reach the DOJ troops in the trenches through a phalanx of loyalists on the frontline. Personnel choices, orchestrated from the White House with Ashcroft as the concertmaster, have been masterful; appointees (some are technically still candidates, having not yet been confirmed by the full Senate) are both demographically and ideologically correct and often have worked together, shared conservative mentors and pursued similar career tracks. Some are adherents of the influential right-wing Federalist Society, whose goal is "reordering priorities within the legal system," a phrase from the society's mission statement that seems to mean seeing the Constitution as a text of rules bound by what are said to be the original meanings of the Framers, thus giving conservative courts the opportunity to enforce the cramped ideologies of the late nineteenth and early twentieth century. (For readers interested in this subject, I recommend the Institute for Democracy Studies briefing paper "The Federalist Society and the Challenge to a Democratic Jurisprudence.")
Among Ashcroft's lieutenants:
§ Theodore Olson, the new Solicitor General, argued on Bush's behalf before the Supreme Court against a full count of Florida votes and has been a close associate of impeachment prosecutor Ken Starr. A former president of the Federalist Society's Washington, DC, legal division and, until April, a member of its national board of visitors, Olson also joined forces with the Center for Individual Rights, another conservative legal center, to represent the plaintiffs in a successful challenge to the affirmative action program of the University of Texas. Since he's the chief trial lawyer for the United States, his characterizations of federal law in arguing before the Supreme Court are likely to carry particular weight with the Justices. And he may be deployed as the ideological messenger to the Court, as appears to be the case in his support of Ohio's plea to review a lower court's rejection of its school voucher program, which has largely been used for religious schools.
§ Larry Thompson, the new Deputy Attorney General and, from 1982 to 1986, US Attorney in Atlanta, is a respected African-American litigator who testified for Supreme Court Justice Clarence Thomas in his tempestuous confirmation hearing. Through most of the 1990s Thompson served on the advisory board of the Southeastern Legal Foundation, which describes itself as "a public interest law firm advocating limited government, individual economic freedom, and the free enterprise system in the courts of law and public opinion," and which has brought a number of suits challenging local governments' minority set-aside programs. He shares with Ashcroft the view that federal death penalty prosecutions are free of racial bias.
§ Ralph Boyd, a former federal prosecutor from Boston and an African-American who breezed through his confirmation hearing to head the civil rights division, was a reputedly effective gang and gun crime prosecutor; he's also been an adviser to the American Sports Shooting Council, a defendant in a 1999 suit by Boston against gun manufacturers that Boyd called "preposterous." His experience in civil rights is very limited.
§ Viet Dinh, a Vietnamese immigrant (he wrote a moving account of his family's perilous journey to the United States in a 1993 Op-Ed piece in the New York Times) and Georgetown Law Center professor, has been chosen as Assistant Attorney General for Policy Development. Described by a colleague as a "conservative hotshot," he worked with former Senator Alfonse D'Amato on the Whitewater investigation and is close to active members of the Federalist Society. In addition to being the department's point man for judicial selection, he will have major responsibility for developing its priorities.