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News and Features
The rogues in robes are on the move. US Supreme Court Chief
Justice William H. Rehnquist, the leader of the pack, and the rest of the
Court's right-wing majority have launched a judicial revolution that
usurps the power of Congress as it applies to civil rights law.
In its latest decision, the Court last week overruled Congress and
held that state governments can arbitrarily deny jobs to disabled people
without violating the equal protection clause of the Constitution. The
Court's decision to gut the Americans with Disabilities Act, passed in
1990 by a huge bipartisan majority in Congress and signed into law by
former President Bush, is yet another assault on representative
democracy. Not content with short-circuiting the presidential election,
the Court has now decided that it, and not Congress, shall make the laws.
When passed more than a decade ago, the only significant opposition to
the ADA came from a band of ultra-rightists led by Jesse Helms (R-N.C.),
who mustered just seven other ultra-conservative Senate votes.
Unfortunately, the Senate's far right is now well-represented on the
Court, and the Justices did what Helms failed to do.
The ADA was the most significant civil rights legislation in decades,
allowing the tens of millions of Americans with disabilities access to
jobs, schools and buildings. The legislation was inspired by those, such
as wounded war hero Sen. Bob Dole (R-Kan.), who believed that the
barriers to the full participation of the disabled in our public life
were a clear violation of their civil rights.
In the recent case before the court, a registered nurse at the
University of Alabama hospital was demoted upon returning to work after
breast cancer treatment. Rehnquist, in helping to overrule a federal
Court of Appeals decision that the ADA prohibited such discrimination,
put cost accounting above the right to access when he wrote that it would
be "entirely rational and therefore constitutional for a state employer
to conserve scarce financial resources by hiring employees who are able
to use existing facilities."
Don't be surprised if the Court next rules that it is not necessary to
provide ramps or other facilities to wheelchair-bound people seeking
access to public buildings, or Braille numbers to aid the blind in
elevators. The Court has already gutted barriers to age discrimination in
What is at issue is the interpretation of the Fourteenth Amendment to the
Constitution extending the protection of universal civil rights to all
Americans regardless of the state in which they reside. The Fourteenth
Amendment--originally addressing the issue of racial
discrimination--explicitly empowers Congress to pass "appropriate
legislation" needed to guarantee equal protection of the law for all.
In striking down key provisions of the ADA, Rehnquist dealt a body
blow to the separation of powers, which grants to Congress sole authority
to pass federal law. Rehnquist said that the law in question was
ill-conceived because he didn't agree with Congress's evaluation of
evidence on the subject, saying it was based on "unexamined, anecdotal
accounts" that did not qualify as "legislative findings."
Given that the ADA was one of the more carefully researched pieces of
legislation ever passed by Congress, there's no reason to believe that
the Court won't throw out any law it doesn't agree with. As Justice
Stephen G. Breyer pointed out in his dissent, the ADA had been the
subject of a dozen Congressional hearings. Breyer attached a thirty-nine-page list prepared for Congress of state-by-state examples of official acts of
discrimination against the disabled. This is not enough? And, anyway,
when it suits its political purpose, the Court's right-wing majority is
quick to rule the opposite, insisting that Congress, not the courts, has
sole power to craft federal law.
Just this past weekend, Justice Antonin Scalia claimed in a speech
that those who believe that the Constitution is an evolving or living
document want to use judicial interpretation to make law. He taunted:
"You want a right to abortion? Pass a law. That's flexibility."
Yet when Congress did pass a law extending the scope of civil rights
protection to the disabled, Scalia didn't like it. He joined the 5-4
opinion overturning it.
Just a couple of questions: If the life of every fetus is sacred, why
would we want to deny that fetus, if born with disabling birth defects,
full civil rights? If one is denied a state job solely because he or she
must use a wheelchair, is that not a clear violation of the equal
protection of the laws called for in the Fourteenth Amendment?
Hypocritically, the same five Justices who struck down the ADA as a
violation of states' rights were all too willing to toss out the issue of
states' rights on the Florida election count. The lesson then and now is
that the current majority of the US Supreme Court seeks to usurp the
power of the states and the Congress when--and only when--it suits its
fiercely held ideological agenda. Sadly, civil rights are the prime
target of that agenda.
It may be legal, but it's still a coup d'état. The nomination of
Theodore B. Olson to be solicitor general, a position of such influence
that it is often referred to as "the 10th member of the Supreme Court,"
affirms that President Bush has turned the US judiciary over to the far
We can't say we weren't warned when Bush, during the campaign, named
Clarence Thomas and Antonin Scalia as his role models for future judicial
appointments. They returned the compliment by obediently bowing to the
arguments of Bush's lawyer, Olson, that abruptly stopped the vote
counting in Florida, thus handing the election to Bush.
Once in office, Bush quickly appointed three of Thomas's closest
personal and ideological buddies to head the judicial branch of the US
government. Newly minted Atty. Gen. John Ashcroft made that point when he
rushed off to Thomas's chambers to be sworn in out of the public eye. Then
came the appointment of Larry Thompson, who had defended Thomas in his
stormy confirmation hearings, as deputy attorney general. Then the pièce
de résistance: Olson.
While newspaper editorials praised the Bush Administration for its
moderate style, the often mute Thomas emerged from the shadows to
celebrate the far right's triumph. At a conservative dinner soiree,
Thomas issued a militant call to arms decrying "an overemphasis on
civility." Indeed, instead of being civil to those with whom he
disagrees, we had the unseemly spectacle of a Supreme Court Justice
calling for ideological war: "The war in which we are engaged is
cultural, not civil." He chided moderates in his own party saying he was
"deeply concerned because too many [conservatives] show timidity today
precisely when courage is demanded."
Surely he wasn't referring to the President, who has given the GOP
right wing the prize it really wanted: control of the judiciary. Clearly,
the intention is to use the powers of the state to pursue the right's
social agenda while virtually dismantling the federal government as a
force for social justice.
The choice of Olson as solicitor general seals the right wing's
seizure of power. But it could not have happened without the denigration
of the Clinton Administration and its threat to marginalize the right by
moving politics back to the center. Key to the effort to destroy Clinton
was this same Olson, who will now represent the US government in cases
involving affirmative action, the environment and women's rights. Guess
what side of those issues Olson has represented in the past? Olson, a
member of the board of directors and legal counsel for the extreme right
American Spectator magazine, was a principal figure in smearing Clinton
even before the man was elected to his first term. The magazine used $2.4
million provided by far-right billionaire Richard Mellon Scaife to dig up
dirt on Clinton in what started as Troopergate and ended up propelling
the Paula Jones case to the status of an impeachable offense. It was this
same Olson, a close friend of Kenneth Starr, who coached Jones' attorneys
before their successful request to the Supreme Court to allow a civil
suit to be heard against a sitting President.
Olson is one of those family values conservatives who evidently
believes that only wealthy women like his lawyer-talk show pundit third
wife should work. He argued unsuccessfully before the Supreme Court
against a California law that protected the jobs of women who took four
months of unpaid disability leave for pregnancy, terming it "destructive
Olson had another major failure when in 1996 he argued against women
being admitted to the publicly financed all-male Virginia Military
Institute on the grounds that the school's character would be
fundamentally altered. To which Justice Stephen Breyer tartly replied,
One of Olson's unsavory victories came when he got a federal appeals
court to rule that the affirmative action program for admissions at the
University of Texas was unconstitutional. An opponent of environmental
protection, Olson has gone to court to get sections of the Endangered
Species Act declared unconstitutional.
Now Olson and the other friends of Thomas are in a position to weigh
in heavily on future nominations to the Court, and their own names will
surely head the list. These are lawyers who have devoted not only their
professional lives but their personal political activity to reshaping the
Court as an activist vehicle to turn back the clock on the rights of
women, minorities and working people as well as to leave the environment
open to corporate exploitation.
By selecting this triumvirate to head the Justice Department, Bush has
sent the strongest of signals as to his intent to use the Court to
advance the far right's agenda. So much for moderation.
George W. Bush has a sweet appealing face until he reveals his dark
side, as when he, in one of his first official acts, cut off funds to
international population control groups.
The pundits said he was merely getting even with organizations like
Planned Parenthood, which have opposed John Ashcroft's nomination as
attorney general. But the stark consequences of that political vendetta
will be tens of thousands of women around the world who will not have
access to safe birth control and who will die in self-mutilating attempts
at abortion. These women find themselves in such dire straits because
they are, in many cases, the victims of forced sex, whether by husbands
or strangers, who have total power over them.
In his message to the throngs bused into the nation's capital last
week protesting on the 28th anniversary of the Supreme Court's ruling
that abortion is legal, Bush said, "We share a great goal--to work toward
a day when every child is welcomed in life and protected by law."
That sounds noble, but it begs the question: For how long is that
child welcome--an hour or a lifetime?
What if that child is an 8-year-old street beggar in Rio de Janeiro or
Bangkok? Will he still be welcome, and under what law will he be
protected from pimps, perverted tourists and local merchants who hire
gunmen to blow street urchins away? And what about the mothers of those
children? Will they, and their families, sink deeper into poverty because
of a birthing decision over which they had little or no control?
Assuredly, they and their progeny will not be welcome to immigrate to the
US to escape the economic collapse of their own part of the world. Nor
has Bush even suggested an increase in the pathetic $2 annually per
American allocated to foreign aid for the world's poor. Instead, he
proposes a $236 billion tax cut over the next decade for the wealthiest
2 percent of Americans, money that if spent on the world's poor would represent
a strong pro-life statement. In effect, he's cynically cheering on
spiraling and unsustainable populations abroad.
That's the reality faced daily by the folks at Planned Parenthood and
those other international population-control organizations that Bush--in
a sop to the right wing of his party--decided to cut off from US
funding last week. There isn't a reputable social service organization
that doesn't prefer contraception to abortion. Denying these groups
funding undermines their effort to educate about birth control, which
would help head off abortions and also curb population growth. Fully
one-third of the world's work force is effectively unemployed, and the
United Nations estimates that 500 million new jobs must be created just
to accommodate new arrivals in the job market over the next decade.
Developing economies do not stand a chance of meeting that demand without
aggressive population control.
Yet Bush has chosen to cut funding for the very organizations, most
notably Planned Parenthood, that work hardest to make birth control
information available throughout the world. These groups do not use a
penny of government money when they counsel women for whom birth control
has failed that abortion is an option. But Bush would deny funds to any
organization that offers abortion information in any of its privately
For all his praise of private charities, Bush does not trust one of
the nation's most venerable social service organizations to organize its
work so as to not compromise the law. This is an organization actively
supported by his grandfather, Prescott Bush, who lost his first campaign
for the US Senate because Democrats confused Catholic voters with
charges that Bush had contributed money to Planned Parenthood. When he
finally won the seat, Prescott Bush was a strong advocate for the
His son, George Herbert Walker Bush, as a young congressman was the
author of the Family Planning Act of 1970, which George W. is now
attempting to reverse. He should heed the words of his father back in
1973: "Success in the population field, under United Nations leadership,
may, in turn, determine whether we resolve successfully the other great
questions of peace, prosperity and individual rights that face the
Bush Sr. abandoned that sensible position to obtain the vice
presidential slot on Ronald Reagan's ticket. The Reagan Administration
first imposed the "gag" rule on family planning organizations, denying
them funds if they even mentioned abortion as a choice in their
educational work. That is the ban that Bill Clinton reversed and which
George W. has re-established.
Bush's purpose seems to be that of placating the far right while
punishing Planned Parenthood for having dared to suggest that John
Ashcroft, who equates abortion to murder, cannot be trusted to enforce
the law protecting a women's legal right to choose that medical
One suspects that if Prescott Bush had been given the choice of
trusting Planned Parenthood over Ashcroft to obey the law, his answer
would have been obvious.
Those endless wars on crime and drugs--a staple of 90 percent of America's politicians these last thirty years--have engendered not merely our 2 million prisoners but a vindictive hysteria that p
That John Ashcroft is a right-wing, pro-gun religious fanatic who
laments the civil rights gains of the past decades and believes that
leaders of the pro-slavery Southern Confederacy are deserving of
veneration should not disqualify him from holding an important office.
No, indeed, he would make an excellent president of the National Rifle
Association, or leader of the Christian Coalition or an anti-abortion group.
Perhaps there's even a job for the defeated Republican senator in the
federal government, say on some historical commission devoted to the
restoration of Civil War artifacts, such as the holding cells for runaway
But how can George W. Bush appoint as US attorney general a man who
gave an interview to the pro-Confederate Southern Partisan magazine that
praised the magazine for its "heritage...of defending Southern
patriots like Lee, Jackson and Davis"? Ashcroft said it was necessary to
stand up for the leaders of the Old South "or else we'll be taught that
these people were giving their lives, subscribing their sacred fortunes
and their honor to some perverted agenda." Never mind that the agenda
these people were defending was slavery. This can only lead one to
believe that Ashcroft's strenuous opposition to affirmative action is
based on the view that slavery and segregation were not all that damaging
to the lives of black Americans.
Ashcroft represents the extreme flash point of the culture wars that
are threatening to tear this country apart. He's of the school that
interprets Christianity as a mandate for condemnation and exclusion
rather than tolerance and inclusion. He's so imbued with his own personal
connection to the Almighty that he interprets his electoral defeats as
"crucifixions" and his return to public life as "resurrections."
His religious arrogance allows for no other interpretation of God's
will. For example, Ashcroft has made support of the death penalty a
litmus test in his selection of judges; what about the Roman Catholic
Church's position condemning capital punishment? Ashcroft finds a
biblical basis for his stern condemnation of homosexuality, but there are
leading Christian and Jewish denominations that strongly disagree.
Ashcroft has every right to practice his variant of Pentecostal
Christianity, but the idea that the nation's chief law enforcer might
force his interpretation into the law of the land is deeply troubling.
The attorney general is charged with protecting the civil rights of
minorities and women's reproductive freedom. Yet Ashcroft's view of what
rights are protected by the Constitution is so narrowly defined as to
condone the reversal of most of the advances in human rights in the past
For example, at a time of rising hate crimes aimed at homosexuals, he
voted against the Hate Crimes Prevention Act as well as bills banning
discrimination in employment. He even voted against AIDS funding.
On a woman's right to choose, which is accepted by a clear majority of
Americans and by the courts, Ashcroft has endorsed the most extreme side
of the anti-abortion position: "If I had the opportunity to pass but a
single law," he has said, it would be a constitutional amendment to "ban
every abortion except for those medically necessary to save the life of
the mother." He excludes rape and incest as justification for abortion.
Ashcroft's abortion views are so extreme that he would favor banning
some contraceptives, such as the pill and IUDs, that can prevent a
fertilized egg from being implanted in the uterus, thus causing, in his
view, de facto abortions. As attorney general, he would play a crucial
role in picking federal judges, including the US Supreme Court, and
there is no way that he would be party to nominating judges who accept
the court's decision in Roe v. Wade.
Finally, we don't need an attorney general who's been the NRA's most
reliable vote in the Senate and the recipient of much funding from that
organization. He was one of only twenty senators who opposed mandatory safety
locks for guns. He also opposed a ban on assault weapons, and he urged
Missouri voters to legalize the carrying of concealed weapons.
The last job in the world that Ashcroft should be offered is that of
US attorney general. Imagine the outcry if Bush had appointed Jesse
Helms to that position. Yet according to the National Journal, Ashcroft's
voting record as a senator was to the right of Helms.
Bush has betrayed the vast majority of Americans who voted for the
politics of inclusiveness and moderation advanced by both him and Al
Gore. Why is there not a single Republican senator, let alone more
Democrats, who are willing to condemn this obvious disaster of a
Senate Democrats must save George W. Bush from his scarier self.
They must reject the appointment of John Ashcroft as attorney general, an
appointment that gives the extreme right its most cherished prize--the
power to undermine decades of progress in civil rights, free speech and
abortion rights. This is not a position for a right-wing ideologue, which
Ashcroft certainly is.
Outwardly, Bush plays the moderate. That's why he came so close to
legitimately winning the presidency. During the campaign, he kept his
distance from the GOP right wing while battling Al Gore for the support
of centrist voters. Now, obviously not at all chastened by being the
first president in more than a century to have lost the popular vote,
Bush has boldly appointed Pat Robertson's favorite senator to the most
important domestic position in his administration.
Ashcroft believes that moderate is a dirty word. "Two things you find
in the middle of the road: a moderate and a dead skunk, and I don't want
to be either one of them," he thundered during his brief primary campaign
as the far right's alternative to George W.
All one needs to know about Ashcroft is that he achieved a 100 percent voting
record from Robertson's Christian Coalition on every major vote he cast
in the US Senate, from abortion and the environment to the arts and the
economy. But it's a voting record that cost Ashcroft his Senate seat in
Clearly, the political center is where Ashcroft's former constituents
and most Americans want their government to be. The voting public's
inability to decide between two moderate candidates for President was
just one indication of its rejection of extreme politics. People expect
the Justice Department to enforce laws regarding a woman's sovereignty
over her own body, civil rights, gun control and drug treatment, among
Yet here we have Ashcroft, a man who sponsored a constitutional
amendment to ban abortion even in the case of rape and incest. How can we
expect him to protect a woman's right to a medical procedure that he
regards as murder?
As for civil rights, Ashcroft was notorious in the Senate for
systematically blackballing President Clinton's judicial and
administrative appointees solely because they possessed a strong
pro-civil rights record. Indeed, Ashcroft, in an interview with the
neosegregationist Southern Partisan magazine, even flirted with the
notion that the wrong side may have won the Civil War. Can he now be
trusted to follow through on the Justice Department's ongoing
investigation into the abysmal treatment of black voters in Florida?
Just go down the list of issues, and Ashcroft is farthest to the right
on most of them.
He's a stern opponent of laws that would prevent discrimination
against homosexuals and was particularly mean-spirited in his attacks
during the confirmation of James Hormel, who happens to be gay, as
ambassador to Luxembourg. He's a darling of the National Rifle Association. And,
at a time of growing recognition, even by the retiring drug czar, that
the drug war has failed, we face the prospect of an attorney general who,
as a senator, voted against a law to provide funding for treatment. This
measure was so noncontroversial that even Republican hard-liners like
Orrin Hatch and Strom Thurmond were sponsors.
Democratic Sen. Joseph R. Biden Jr. of Delaware, who at first said he
was inclined to grant Bush his choice as attorney general, says upon
further reflection that Ashcroft must prove to his former colleagues in
the Senate that he "will vigorously pursue the civil rights laws that he
has--with good reason from his perspective--argued against for the last
Too late for such proof. Biden and his colleagues should make it clear
that there can be no bipartisan cooperation if the Bush Administration
insists on insulting the majority of American voters by putting extreme
ideologues in charge of Justice. They have an obligation to keep the
faith with voters who gave Gore a more than 500,000-vote margin of
victory in the popular vote and the Democrats a tie in the Senate.
Those voters, as well as many who voted for Bush thinking he was not
beholden to the right wing of his party, should not be betrayed in
deference to the clubbiness of the Senate. Ashcroft took the gloves off
when he blocked Clinton's appointees. It is time Senate Democrats showed
the voters they can dish it out as well as take it.
Ashcroft's supporters assure us that he will have no trouble enforcing
laws that he disagrees with. But since he profoundly disagrees with so
many, why put the man through such a test?
Senate Democrats should spare Ashcroft the anxiety that derives from
pretending to enforce laws he finds deeply immoral.
The right wing has long believed that the best defense is a good
offense. Not surprisingly then, they accuse those who dare criticize
George W. Bush's attorney general nominee, John Ashcroft, of engaging in
the "politics of personal destruction," as the President-elect's
attorney, Theodore B. Olson, put it in a L.A. Times column.
That is nonsense. The criticisms of Ashcroft have nothing to do with
his personal behavior and everything to do with his long and consistent
advocacy for an extreme right-wing political agenda. It's perfectly
reasonable to question whether an attorney general who has celebrated the
angry mobs demonstrating at abortion clinics will also defend the legal
right of those clinics to function.
Ashcroft is an avowed enemy of moderation, as he spelled out to a GOP
gathering in 1998: "There are voices in the Republican Party today who
preach pragmatism, who champion conciliation, who counsel compromise. I
stand here today to reject those deceptions. If ever there is a time to
unfurl the banner of unabashed conservatism, it is now."
To place such an ideologue in charge of the Justice Department was
Bush's payoff to the right wing, but it is at best a cynical choice that
certainly deserves to be strongly challenged in the Senate. Such
challenges were a specialty of Ashcroft, who turned the Senate into an
ideological black hole for Clinton nominees. Yet his defenders now claim
that Ashcroft should be immune to criticism because, as Olson claims,
"Presidents are customarily given great latitude" in such nominations.
How hypocritical to make that argument on behalf of a man who
specialized in savaging Clinton's choices. Ashcroft held up the
nomination of two of Clinton's picks to head the Justice Department's
Civil Rights Division. Bill Lann Lee, who has impeccable credentials, now
serves in that capacity on a temporary basis only because he was
appointed when the Senate was not in session. "I doubt seriously whether
the nomination will get out of committee," Ashcroft boasted, claiming
that Lee could not enforce the laws fairly because he had worked as a
lawyer for the NAACP Legal Defense Fund, which is the fabled organization
that successfully sued to end segregation in the United States.
Ashcroft has been the Senate's leader in blocking many of Clinton's
judicial nominees, including Margaret Morrow, a centrist and highly
regarded leader of the bar, because he did not agree with a sentence she
wrote in a Law Review article. Morrow was finally approved, over
Ashcroft's objections, when many of his Republican colleagues came to
recognize that there simply was no basis for rejecting someone as
qualified as Morrow.
In another among many such cases, Ashcroft held up the appointment of
Missouri's Supreme Court Justice Ronnie L. White, an African-American, to
the federal bench. White was twice approved by the Senate Judiciary
Committee, but Ashcroft managed a two-year delay in the vote coming
before the full Senate, where Ashcroft managed to get White defeated on a
Ashcroft was less successful in blocking the appointment of David
Satcher to become US surgeon general because they differed on
partial-birth abortion. The Senate handily approved Satcher, but it was
over Ashcroft's strenuous objections. How ironic that Ashcroft's
supporters now ask that he be treated with kid gloves during his own
Such obstructionist tactics in the Senate came to an abrupt and
embarrassing end with Ashcroft's defeat in November by a deceased
opponent, providing as clear a case of voter rejection as one can
imagine. Obviously, voters were not swayed by the huge publicity Ashcroft
received for his vitriolic campaign demanding the impeachment of
President Clinton. Given that the charges against the President have not
been fully resolved, are we to expect that Ashcroft will dispose of them
in an objective manner?
Ashcroft's hysterical attacks on Clinton and his fervent embrace of
the right-wing social agenda led him to explore a bid for the presidency
as the ultra-right alternative to Bush. He seemed to be attacking Bush
when he told a New Hampshire television interviewer that there are "two
things you find in the middle of the road: a moderate and a dead skunk,
and I don't want to be either one of them."
Surely most Americans would insist that the man who oversees the FBI
and all federal prosecution be a genuine moderate capable of evenhanded
enforcement of the nation's laws. The voters gave the Democrats equal
strength in the Senate and defeated Bush by more than half a million
votes in the popular election. That is a mandate for Bush to appoint
moderates and for Democratic and reasonable Republican senators to hold
him to his pledge, with a thumbs down to Ashcroft.
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A stay of execution was issued October 26.
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