Questions for Ashcroft
As the Senate begins its hearings on the nomination of John Ashcroft as Attorney General, it is important to focus on the different roles that his office plays in the administration of justice in the United States so that the senators can focus on appropriate questions to ask.
First, the Attorney General enforces the law, both criminal and civil. In 1999 the federal government initiated almost 60,000 criminal prosecutions and brought more than 31,000 civil actions (it also participated as an amicus in thousands of other cases). As every lawyer knows, enforcement of the law involves considerable discretion at every level of the process. The Attorney General and those under his or her command (Janet Reno was the only female ever chosen for the position) decide which kinds of cases will be prosecuted and which types of cases will be prosecuted vigorously, given the limited resources of the office. Those choices will be made based on the legal and political philosophy of the Attorney General.
Second, the Justice Department plays a vital role in constitutional cases brought before the Supreme Court. The department represents the United States as a party before the Court in important constitutional matters. Even if the United States is not officially a party to the action, the Supreme Court often asks for its views in significant cases, such as in state laws dealing with abortion or affirmative action.
Third, the Justice Department plays a key role in the selection of federal judges. The US senators in each state generally recommend (that is, pick) federal district judges (trial judges), whose qualifications are then vetted by the Justice Department. If the President and a senator are from the same political party, such choices are rarely vetoed by Justice. If a senator from the opposite party makes a recommendation, the Justice Department's power to reject the nominee is much greater. With respect to circuit judges (who sit on a federal Court of Appeals), senators play a lesser (even a nonexistent) role. Depending on the selection philosophy of the President, the Justice Department may make the key decisions on these judges. And with respect to Supreme Court nominations, the President relies heavily on his Attorney General's recommendations.
Here are questions the senators should ask John Ashcroft to uncover how he will run the Justice Department in each of these areas.
Will you vigorously enforce federal criminal statutes prohibiting gun possession?
Federal law makes it a crime for certain classes of people to possess a firearm, including people previously convicted of a felony, those under a restraining order for domestic violence, those committed to mental institutions and others (18 USC § 922(g)). Ashcroft has supported the notion that the Second Amendment affords citizens a constitutional right to bear arms. He has also supported efforts to water down the Brady Bill, fought against a federal assault-weapons ban and fought another bill that would have expanded federal authority to punish illegal firearms traffickers. In 1999 a federal judge in Texas held that federal laws criminalizing gun possession violated the Second Amendment. That case is on appeal. Will the Justice Department continue to defend the constitutionality of Section 922(g)?
How should we protect against instances of school violence such as the Columbine incident?
After Columbine various proposals were made in Congress to reduce gun violence by requiring mandatory gunlocks on weapons or closing the gun-show loopholes (sales of weapons at gun shows do not require the same background checks of purchasers as those required for licensed gun dealers). Ashcroft, who has received contributions from the NRA, voted against most recent proposals to strengthen gun laws. He seems to believe that the answer to school violence is not stopping gun sales but censoring television and gangsta rap lyrics. He supported the Children's Protection from Violent Programming Act, stating that "exposure to violent programming does in fact play an influential role in children's behavior," reasoning that "the murder rate in the United States doubled within fifteen years after television was introduced in the United States." There is also a strong correlation between the rise in the murder rate and the introduction of Big Macs in the United States, but no one attempts to limit hamburger sales.
Would you vigorously enforce the federal Freedom of Access to Clinic Entrances (FACE) law?
A federal law, 18 USC § 248, makes it a crime to harass or intimidate a person attempting to obtain or provide "reproductive health services." In view of Ashcroft's strong opposition to abortion, will he enforce these provisions?
Will you vigorously enforce federal criminal laws against local police who violate the constitutional or civil rights of citizens?
Federal law (18 USC § 242) makes it a crime for a person "acting under color of law" (that is, utilizing state power) to willfully violate the constitutional rights of any person. Under that provision, the New York police who tortured Abner Louima were prosecuted by the federal government, convicted and sentenced to long prison terms. In view of Ashcroft's law-and-order bent and his vocal support of local police, would he follow the active role of the Reno Justice Department in enforcing Section 242?
Would you apply and enforce the "pattern and practice" provisions of federal law against local police?
Another important weapon of the federal government against erring police departments that disregard the constitutional rights of citizens is the "pattern and practice" provision of federal law (42 USC § 14141). That allows the Justice Department to bring a civil action against local law-enforcement departments to enjoin any practice that "deprives persons of rights, privileges or immunities" secured by the Constitution. Such actions have been brought in recent years against the police departments of Pittsburgh; Steubenville and Columbus, Ohio; and Los Angeles. A long investigation has been in the works against police practices in New York City. Will the Justice Department continue to use this provision?
Will you enforce federal laws against discrimination?
The Justice Department is given power to enforce various federal civil rights laws directly, including Title VI (prohibiting discrimination by all federal fund grantees), Title VII (prohibiting discrimination in employment) and Title VIII (prohibiting discrimination in housing). Over the past eight years, many important civil suits have been brought by the federal government, including disparate-impact suits against local police and fire departments whose membership was still woefully short of women and minorities. The civil rights division also enforced the Federal Fair Housing Act by attacking discriminatory mortgage practices by banks, and it joined an imaginative lawsuit attacking discriminatory tax assessment policies in New York State's Nassau County that imposed proportionately heavier real estate taxes on poorer minority homeowners. The Justice Department also supported desegregation decrees in many locales. Would Ashcroft continue that type of enforcement? As Governor of Missouri, he tenaciously fought against the desegregation of the Kansas City and St. Louis school systems. The Supreme Court recently granted review of an important case dealing with the limits on punitive damages in employment discrimination cases. The issue: Does the $300,000 cap on damages in the 1991 Civil Rights Act apply to "front pay," that is, the pay that a worker would have earned in the future, absent the discrimination? What will the Justice Department say about that limit?
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?
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.