Ashcroft's Brand of Justice
John Ashcroft took office swearing on a stack of Bibles--on three of them, actually, one for each of his children--to run "a professional Justice Department that is free from politics." Sure. That's why he, or someone in the White House spin department, chose Supreme Court Justice Clarence Thomas to administer the oath. There are multiple messages here. There's the photo-op-that-looks-like-America message; there's the twin-martyrs-to-liberal-attacks message; and most important, there's the wink-and-nod message conveying Ashcroft's idea of constitutional interpretation. Thomas, let's not forget, is the Supreme Court Justice who has written that Roe v. Wade is this century's Dred Scott and who has held that prison guards punching out inmates' teeth doesn't constitute cruel and unusual punishment.
With Ashcroft confirmed, the symbolic terrain of abortion rights is where the Bush Administration seems determined to first test the boundaries of the politically possible, as evidenced by Bush's provocative ban on federal funding of overseas family-planning agencies in the middle of the Ashcroft hearings. On Meet the Press just forty-eight hours before the Judiciary Committee acted, Vice President Cheney refused to rule out seeking to overturn abortion rights--despite Ashcroft's confirmation conversion to Roe v. Wade as "settled law"--and made it clear that "trying to find ways to reduce the incidence of abortion" will be a top priority of the Ashcroft Justice Department.
And beyond abortion? Will W.'s determination to peel black support away from Democrats trump the new AG's historic hostility to voting-rights reviews and desegregation suits? If Bush is serious about easing black mistrust, the first thing he must do is make sure Ashcroft names a reputable deputy attorney general for civil rights, not an anti-affirmative-action ideologue. And if Ashcroft doesn't give the department's voting-rights lawyers latitude to follow up on the US Civil Rights Commission's inquiries in Florida, all those multiracial photo-ops will be exposed as a bad joke. Another key issue: How far and fast will Ashcroft move in asking the Supreme Court to modify its longstanding ban on aid to parochial schools for purposes that primarily advance religion? Lowering that bar takes on new importance with the Bush Administration's faith-based social-services initiative.
Ashcroft's first high-level appointment--of Theodore Olsen as Solicitor General--is no surprise, given Olsen's Supreme Court victory in the Florida case and his affiliation with the Clinton-hating center of conservative legal politics, The Federalist Society. Higher education affirmative-action cases--with universities trying to defend their admissions policies against reverse-discrimination claims--are piling up at the Supreme Court's doorstep and will provide one of the first windows into how far Olsen and Ashcroft will go toward challenging established federal policies. Likewise an environmental case, Gibbs v. Babbitt, involving red wolves, with conservatives challenging the Endangered Species Act as unconstitutional. In the final hours of the Clinton Administration, Solicitor General Seth Waxman weighed in with a brief defending the act, and environmentalists are watching to see if Olsen rushes to submit a new brief to the Court.
With the first two federal executions in four decades now pending--Timothy McVeigh with a May date and Juan Raul Garza granted a six-month stay by Bill Clinton--Ashcroft more than any Attorney General in memory occupies ground-zero in the death penalty debate. And he'll decide how vigorously to enforce federal gun-control laws already on the books. When it comes to reining in corporate monopolists, will Ashcroft even pretend to fulfill his confirmation pledge vigorously to enforce antitrust laws--laws that essentially fell by the wayside in twelve previous years of Reagan/Bush administrations? Watch the pending Microsoft case.
Perhaps the most legally and politically consequential choices facing Ashcroft involve an issue that divides even the Republican Party: the war on drugs. In Tulia, Texas, police have arrested 20 percent of the African-American population on drug charges. The FBI has begun a civil rights investigation, but Ashcroft, who never met a drug arrest he didn't like (as a senator, he argued for punishment over treatment and for making needle-exchange programs illegal), will determine whether it goes forward. Henry Hyde and Bob Barr pushed legislation last term to reform the corrupting system of property-forfeiture laws, while Connecticut Governor John Rowland now proposes restoring sentencing discretion to his state's judges in drug cases so more offenders can be pushed into treatment instead of mandatory prison. Will Ashcroft, whose power will be enhanced if the Administration follows through on downgrading the drug czar position from Cabinet status, listen to such Republican voices--or will he drive Justice further into the drug-war quagmire?
All this will play out on a political landscape already shaped by the Ashcroft nomination fight. If nothing else, the Democrats' forty-two votes against Ashcroft's nomination established the clout of civil rights and civil liberties groups and serves as a warning against Supreme Court nominations too far on the conservative fringe. At the same time, it's important not to ignore the defections of Senators Russell Feingold and Christopher Dodd, both of whom claim to have voted for Ashcroft out of respect for the right of a President to select a Cabinet that reflects his views. Given the capacity of Justice to administer swift and lasting damage to civil rights--a fact that led many other senators, aware of their constituencies' concerns, to vote against Ashcroft--that's a dangerous calculation. The coalition that opposed Ashcroft emerges from this fight well positioned to play the role of shadow Justice Department, but it will have to shadow the Democrats just as fiercely if a spirit of opposition is to be sustained.