Questions for Ashcroft | The Nation


Questions for Ashcroft

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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.

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

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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)?

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