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Questions for Ashcroft | The Nation

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Questions for Ashcroft

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What is your position on affirmative action?

It is well settled now that strict quotas requiring employers or government contractors to hire a specific number of women or minorities are illegal. But affirmative action goals are permissible, and using race as a positive factor in employment, school enrollment or government contracts is also acceptable. The Reno Justice Department worked out a positive plan for encouraging government contractors (particularly military contractors) to increase their reliance on minority subcontractors. An important case was just decided in Michigan allowing the University of Michigan to use race as a positive factor in admissions (Gratz v. Bollinger), given the positive impact that larger numbers of minority students will have on the institution. The Justice Department will surely be asked its views on that case as it goes up on appeal. What position will Ashcroft take?

About the Author

Leon Friedman
Leon Friedman is a professor of constitutional law at the Hofstra Law School.

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Instead of cutting benefits for the poor, how about taxing the total household wealth of the rich?

The relentless reduction of taxes on the wealthy has created a profound inequality between the very rich and the bottom half of American society, affecting every aspect of daily life.

What position will the Justice Department take before the US Supreme Court on overruling Roe v. Wade?

Ashcroft's position on abortion has been consistently pro-life and anti-choice. As Attorney General of Missouri he personally argued a major abortion case before the Supreme Court dealing with postabortion procedures and with the requirement that abortions be performed in a hospital, winning the first part and losing the second (Planned Parenthood v. Ashcroft). As Governor, he proclaimed January 22, 1989 (the anniversary of Roe v. Wade), a day in memoriam for the unborn children of Missouri. As a senator, he recently introduced the Putting Parents First Act, which would require every minor female in every state to notify a parent and obtain consent before being able to obtain an abortion. (A secondary question: In view of Ashcroft's strong states' rights position, how can he justify having the federal government dictate to the states how they should handle the issue of abortions for minors?) Both of the two Attorneys General in the last Bush Administration urged the Supreme Court to overrule Roe v. Wade: in 1989 in Webster v. Reproductive Health Services and in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey--the latter case argued by then-Solicitor General Kenneth Starr. Although our President-elect has soft-pedaled his opposition to abortion (at least before certain audiences), what official legal position will his Justice Department take before the Supreme Court on this issue?

What position will the Justice Department take regarding the application of federal antidiscrimination laws against the states and other federal laws challenged on the basis of federalism?

The Supreme Court has before it an important case dealing with whether state employees can sue the states for discrimination under the Americans with Disabilities Act in view of the immunity the states possess under the Eleventh Amendment (which prohibits suits against states in federal court). The Reno Justice Department has vigorously defended that law and others like it, such as the Family and Medical Leave Act, which, in lower court decisions, has also been declared unconstitutional as applied to the states. The Supreme Court has recently invalidated more than ten federal laws on the grounds of federalism. The Justice Department has the responsibility to defend the constitutionality of all federal laws in the courts. In view of Ashcroft's strong states' rights position, what will his position be?

Do you believe that homosexuals should be protected against discrimination and harassment?

Ashcroft's views against homosexuality are well known. He voted against the confirmation of James Hormel as ambassador to Luxembourg because Hormel is gay. Ashcroft opposed legislation extending hate-crime laws to cover gays and has stated that he regards gay behavior as a sin. Although federal antidiscrimination laws do not by their terms protect sexual orientation, the Justice Department is often asked its views on the constitutionality of state laws on the subject. In the famous case of Romer v. Evans, the Supreme Court struck down a Colorado constitutional amendment that would have wiped out all laws that would have protected gays against discrimination. If a similar case came before the Supreme Court and the views of the Justice Department were solicited, what position would the Justice Department take?

Will you apply the same standard for selecting federal judges as you did in the Ronnie White case?

The Ronnie White case is rightfully considered scandalous. White was a distinguished member of the Missouri Supreme Court recommended for a federal district court position. While he was a justice on the Missouri court, he upheld the death penalty in 70 percent of the cases that came before him and dissented in only a small number. But one of those cases (Missouri v. Johnson) involved a defendant who killed three police officers and the wife of another. White, in sole dissent, thought the defendant's counsel was totally inadequate in presenting the case. When White appeared before the Senate Judiciary Committee, Ashcroft asked not a single question about the death penalty or about Johnson. The other Republican senator from Missouri, Kit Bond, strongly supported White's nomination. The Judiciary Committee voted to confirm 13 to 3. Only after a tough re-election campaign against Mel Carnahan developed did Ashcroft take up the cudgels against White, presumably to present a tough law-and-order position in the election. Ashcroft persuaded his Republican compatriots--even those who had supported White on the committee--to vote against him. In suggesting or clearing nominees for the federal bench, would he veto any judge who dissented in a death-penalty case or any lawyer who defended a murderer? How many dissents would he permit a candidate? What other litmus tests would he apply?

Beyond the Ronnie White case, would Ashcroft revert to the rigid ideological requirements of the Reagan Administration? Potential Court of Appeals judges were then put through a tough cross-examination by the Office of Legal Counsel and asked to defend prior decisions that the Justice Department did not like. The Clinton Administration, to its credit, would clear nominations beforehand with the Republicans, particularly Orrin Hatch. Would Ashcroft agree to a similar arrangement with the Democrats?

The Senate should have answers to all these questions before it decides on Ashcroft's nomination.

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