News and Features
There wasn't much good news to report from the year 2000, but topping the list in health terms was the long-overdue final shutdown of the Chernobyl nuclear power station on December 15. Unit Four at the Ukrainian complex blew up in 1986, spewing radioactive death and destruction around the planet. Evidence points to a skyrocketing death rate among the 800,000 "liquidators" who were forced by the Soviet government to help clean up the stricken reactor, while new studies also show escalating cancers among civilians in the downwind areas.
Earlier in the year, on the fourteenth anniversary of the Chernobyl debacle, the Radiation and Public Health Project and Standing for Truth About Radiation (STAR), a national safe-energy organization, released a pathbreaking study showing that radioactive emissions from commercial reactors are having catastrophic health effects on people living near them comparable to those experienced by nuclear weapons workers, for which the Energy Department has finally admitted responsibility. The study, by Joseph Mangano, a nationally known epidemiologist, compared infant death rates in areas surrounding five nuclear power plants while they were operating and in the years after their shutdowns. Mangano found that from 1985 to 1996, average nationwide death rates for infants under the age of 1 dropped 6.4 percent every two years. But in the areas surrounding five reactors closed down between 1987 and 1995, infant death rates dropped an average of 18 percent in the first two years. "It's hard to imagine a clearer correlation," says Mangano. "The fetus in utero and small babies are the most vulnerable to even tiny doses of the kinds of radiation emitted from nuclear power plants. Stop the emissions, and you save the children."
Published in the journal Environmental Epidemiology and Toxicology, Mangano's study covered these reactors: Wisconsin's LaCrosse, which closed in 1987; Rancho Seco, near Sacramento, and Colorado's Ft. St. Vrain, both closed in 1989; Trojan, near Portland, Oregon, which shut in 1992; Connecticut's Millstone plant, which closed in 1995. Later research on two additional reactors, Maine Yankee and Big Rock Point in Michigan, both of which went cold in 1997, showed that infant death rates fell a stunning 33.4 percent and 54.1 percent, respectively.
"Forty-two million Americans live downwind within fifty miles of commercial reactors," says Mangano. "The Nuclear Regulatory Commission allows nuclear plants to emit a certain level of radiation, saying that amount is too low to result in adverse health effects. But it does not do follow-up studies to see if there are excessive infant deaths, birth defects or cancers." Additional research by Mangano also indicates a drop in overall cancer deaths among elderly people living near nuclear plants once they are deactivated.
On June 5 the Supreme Court ruled that some 1,900 central Pennsylvanians living downwind from the Three Mile Island nuclear plant could sue for health damages. Local residents and researchers claim that a plague of death and disease followed the March 28, 1979, radiation leak at TMI Unit 2.
Even longer-overdue justice is coming to workers in the Energy Department's nuclear weapons production facilities. From the 1943 beginnings of the Manhattan Project to the ongoing enrichment of uranium at gigantic plants in Ohio, Kentucky and Tennessee, the government has denied virtually all claims from thousands of workers suffering from a range of radiation-related diseases. But the DOE finally issued a series of sweeping admissions after DOE-sponsored research found excess worker deaths from cancer and other causes at fourteen DOE facilities. A DOE report issued in May confirmed that hundreds of workers at Ohio's Portsmouth Gaseous Diffusion Plant, whose supervisors did not require them to wear protective masks, routinely inhaled uranium dust, arsenic and other lethal pollutants. President Bill Clinton signed into law a federal compensation program for DOE workers exposed to radiation, beryllium and silica. The program will cover some 600,000 people involved in making nuclear weapons.
The DOE's admissions give new weight to public demands that the commercial reactor industry come to terms with public health risks now that numerous aging and leaky reactors are waiting in line for extended licenses from the NRC. "How much more of this bodies-in-the-morgue approach to public health research do we need?" asks Robert Alvarez, executive director of STAR. "Shutting reactors may save lives. What more needs to be said?"
Far more federal investigators. Many more prosecutions of illegal immigrants. The continuing dominant role of the war on drugs. A decreasing emphasis on white-collar crime. More and more time required for the completion of criminal prosecutions. The unchanging reluctance of federal prosecutors to deal with brutal police officers. Fewer audits for corporate America.
Those are some of the important ingredients of the Clinton legacy. While President Clinton's influence was felt throughout the federal government, it is in the area of law enforcement that some of his Administration's most striking aspects can be documented. Considered together, they point to an Administration that, while talking about liberal values, was extremely successful in capturing the political support of a law-and-order constituency that for many years had mostly backed the GOP.
Often, the role of the White House was relatively minor. But since President Clinton has casually claimed credit for many good things that happened, whatever the size of his contribution, it seems only fair to judge his performance by that same standard. And based on such a review, it is clear that George W. Bush should have little trouble carrying on much of the Clinton tradition.
Headcount and Spending
Perhaps the most startling development of the Clinton years was the change in the basic makeup of the federal government. During the recent election campaign, one of Bush's favorite lines concerned Vice President Al Gore's alleged lust for big government. But as Gore noted in very general terms, the federal government shrank during the Clinton years. With the end of the cold war, the number of uniformed personnel in the military went down. Significantly, however, the 1999 federal payroll listed almost 25 percent fewer civilian employees--in relation to population--than it did in 1992. Meanwhile, the number of criminal investigators was increasing. In 1992 there was one criminal investigator for every thirty federal employees. In 1999 there was one criminal investigator for every twenty employees. With no room for discussion, Clinton is leaving us with a government that has become more concerned with enforcing the law and investigating the people, and less able to provide the public with a range of other services.
Given the overall decline in government employees, it is not surprising that direct federal expenditures did not increase during these years. In constant dollars, payments amounted to $5,694 for each American in 1992, $5,647 in 1999.
An agency-by-agency breakdown of the changes in federal spending, however, provides additional insight about the government's increasing enforcement and investigative roles. We have already mentioned the decline in military personnel. Measured in constant dollars this drop was substantial: from $1,034 per person in 1993 to $871 in 1999. But, accelerated in part by Vice President Gore's "reinventing government" effort, spending by many agencies not under the Defense Department umbrella, including the departments of Agriculture, Treasury and Housing and Urban Development, also declined. The EPA was down 15 percent, other regulatory agencies dropped by 29 percent, the Energy Department was off by 28 percent and NASA dropped by 21 percent.
But hold on. A few agencies bucked the downward trend. Leading this much smaller pack was the Justice Department, where constant per capita spending jumped by 72 percent.
Why is this? Well, with Clinton and the Republicans competing to outspend each other in funding the always popular "war on crime," the startling success of Justice in the budget battles was predictable. Although the Immigration and Naturalization Service (INS) and the Bureau of Prisons were among the biggest winners within the department, it is also worth noting that the Clinton Administration's FBI is larger today--both in raw numbers and in relation to population--than at any time in history, including World War II, the cold war and the period of civil disturbances related to the Vietnam War and after the assassination of Martin Luther King. Individuals listed with the occupational specialty of "intelligence officer" nearly quintupled, jumping from 224 to 1,025.
More federal enforcers and more enforcement dollars might be assumed to translate automatically into more federal prosecutions. But over the years, while the number of prosecutions has edged higher and higher, the annual number of such actions has varied: It was relatively high in 1993, slumped significantly in 1994 and then began going up again. According to Justice Department data, upon which most of this analysis rests, the prosecution count jumped sharply in 1998, to 82,071. (Because the department has withheld 1999 data from us, enforcement information about the last full year of the Clinton Administration is not now available. But court data suggest that in 1999 federal prosecutions reached an all-time high.)
§ Immigration. Immigration matters made up a major part of the recent spurt in indictments. In fact, such actions more than doubled during the Clinton years, jumping from 7,335 in 1993 to 14,616 in 1998. (Once again, court data indicate that immigration prosecutions continued their dramatic rise in 1999.) The recent jump in immigration prosecutions is the major reason that the overall number of federal court cases has increased at a faster rate than at any time since the Nixon Administration launched the war on drugs and ordered federal prosecutors to go after Vietnam War draft dodgers. The surge in immigration prosecutions followed an agreement by the Administration and Congress to step up border control efforts through the simple expedient of hiring many more INS agents.
§ Drugs. For many years the effort to combat the sale and use of illegal drugs has dominated the federal enforcement agenda. From 1993 to 1998, for example, drug cases consistently made up more than one-third of all federal prosecutions. By comparison, fewer than one out of ten prosecutions during the same period were classified by the Justice Department as involving official corruption, environmental and regulatory matters. The sharpest increases in the annual number of federal drug prosecutions came during the Reagan and Bush years. By contrast, in the early Clinton years drug prosecutions actually declined slightly and then began inching higher, reaching 30,014 in 1998. This total is more than three times the 8,938 such actions in 1981. (The overwhelming impact of the drug war on the federal system is hard to exaggerate. In recent years, for example, drugs have been the criminal offense involved for 42-45 percent of all people sentenced to prison.)
§ Guns. By contrast, there was one specialized area that went through an extraordinarily steep decline during the same period: the enforcement of the nation's gun laws by the Bureau of Alcohol, Tobacco and Firearms. Referrals by ATF for federal prosecution declined by 44 percent from 1992 to 1998. (In fairness, the court data suggest that an increase in weapons enforcement actions that began in 1998 continued in 1999.)
A key factor behind the surprising drop in ATF referrals during most of the Clinton years was a 14 percent cut in ATF criminal investigators, mandated by Congress but accepted by the Administration's strategists. Many experienced enforcement officials believe that a second important explanation for the collapse of the ATF was its 1993 raid on the Branch Davidians in Waco, Texas. Their argument: The widespread public criticism of this flawed action profoundly undermined the agency's morale and its will to enforce the law. But no one should forget that the ATF raid itself and the FBI's subsequent horrific effort to end the hostage situation were also dismal parts of the Clinton legacy.
The sharp decline in ATF referrals in the 1992-98 period became a significant political issue in the presidential campaign when the Republicans and the National Rifle Association teamed up to attack the Administration's enforcement priorities. With some legitimacy they joined in asking why Clinton used a series of shooting incidents during the period to make high-publicity requests that Congress pass new gun-control laws when his Administration was not fully enforcing the ones already on the books. Because Congress was ultimately responsible for cutting the ATF budget, the Republican criticism also contained a good dash of hypocrisy.
§ Police Brutality. Sometimes the priorities that go unchanged, the dogs that don't bark, are as revealing as those that do. One example: When local jurisdictions fail to punish brutal police officers and prison guards, the federal government has the option of bringing criminal charges against the offenders, usually under one of two laws. But for many years federal prosecutors have been reluctant to pursue this approach. During the past twelve years, federal prosecutors appointed by both former President Bush and President Clinton have obtained indictments in only 3 percent of all such matters referred to them by the FBI. (By comparison, federal prosecutors have consistently prosecuted a much larger proportion of the matters presented to them concerning another kind of government abuse--official corruption.) In 1998, for example, 48 percent of these other matters resulted in an indictment. Thus the Clinton legacy in this sensitive area simply continued the federal practice of the past quarter-century under both Democratic and Republican Presidents.
The Wheels of Justice
In addition to the specifics of what laws were or were not enforced, the data we have obtained and analyzed also highlight broader problems in the federal justice system. One concerns the startling long-term increase in the time required to complete a case in federal court. At the beginning of the Reagan Administration the median time was ninety-nine days. At the end it was 130. At the beginning of the Bush years the median was 141 days; by the end it was 160. The pattern continued during the Clinton Administration: 168 days in 1993, 205 in 1998. Although the legislature writing the laws and the judges administering the courts bear some responsibility for this explosive change, the vast discretionary powers of the prosecutors appointed by Reagan, Bush and Clinton make them the first among equals.
The doubling of federal prosecution time raises troubling management and budget questions for the Justice Department and the courts. But for those who believe in the American ideas of fairness, and for the hundreds of thousands of defendants being processed through the federal assembly line, there is a second obvious question: Can anyone doubt that justice delayed is justice denied?
The initiation of criminal charges is not the only way the government works to persuade the American people to do the right thing. A second option is for the government to impose administrative sanctions outside the courts. One of the most conspicuous users of this second kind of federal authority is the Internal Revenue Service. Fully acknowledging that IRS policies are heavily influenced by the decisions of Congress, the tax enforcement patterns of the past few years remain a major part of the Clinton legacy, especially given the vast reach of this agency.
One striking reality here is the sharp decline in all kinds of tax enforcement. During the Clinton years, the overall audit rate for individuals has dropped by half, from 0.66 percent to 0.31 percent. During the same period, corporate audits went through a similar decline--2.9 percent in 1992, 1.51 percent in 1999. The decline in the audit rate for the largest corporations--those with assets of more than $250 million--is also noteworthy. In 1992 more than half of these giants were audited. In 1999 the rate had dropped to only one in three.
As just noted, the Clinton Administration is not solely responsible for the broad degradation of the IRS's enforcement presence. During the past few years conservative forces in Congress have mounted an intense rhetorical attack on the agency, which resulted in budget cuts requiring a reduction in the number of expert revenue agents who have the skills to audit upper-income and corporate tax returns. The tax man has in fact been taking it on the chin for a long time. After a substantial buildup of the IRS during the Reagan years, full-time staff is now 31 percent smaller than it was in 1988, when the cutbacks began.
This decline, and other factors that hit the agency in the early 1980s, have resulted in a dramatic shift in how the American people experience the IRS. In fact, the proportion of taxpayers now required to go through the traditional "face to face" IRS audit is five times lower than it was in 1981.
Perhaps the most surprising Clinton-era development occurred last year when--reversing past practice--low-income taxpayers suddenly stood a greater chance of being audited than high-income taxpayers. Because wealthy taxpayers obviously have more to hide from the government and better opportunities for hiding it, the IRS has historically focused its audits on the rich. In 1999, however, the audit rate for those making $100,000 or more was only 1.15 percent. At the other end of the scale, the rate on simple returns reporting $25,000 or less was 1.36 percent.
The data suggest that the federal government President Clinton leaves behind has become less able to serve the traditional needs of the American people but better equipped to investigate and prosecute them. Clinton gave moving speeches about his concern for African-Americans. But when it came to dealing with brutal police officers--a matter of special concern to black Americans--his government followed the minimalist approach of the Reagan and Bush administrations. After almost every major shooting incident of the past few years, Bill Clinton called for new gun-control programs. But when it came to enforcement, his government seemed to lose its way.
Assuming President-elect Bush succeeds in getting John Ashcroft as his Attorney General, the question is just how much of the current policy this outspoken conservative will actually want to change.
Many of George Bush's supporters say that his recent nominations of Colin Powell as Secretary of State, Condoleezza Rice as National Security Adviser and Rod Paige as Secretary of Education prove that he is serious about racial diversity. Moreover, his nomination of a Latino and two white women to his Cabinet suggests that compassionate conservatism boasts enough room for all sorts of minorities. But before we count the votes for Bush's celebrated--or is it calculated?--display of racial leadership, let's at least acknowledge that we may have run into some dimpled chads.
Powell's nomination is a no-brainer, which, as it turns out, may perfectly suit Bush's presidential profile. To take credit for nominating a national hero to extend his stellar record of public service is only a little better than taking credit for inventing the Internet. Powell's halo effect may redound to Bush, but his choice of Powell owes nothing to Bush's fundamental bearing as a racial statesman. Powell and Bush are at significant odds on crucial issues. Powell's vigorous support of affirmative action, his belief in a woman's right to choose and his advocacy for besieged urban children put him to the left of the Bush dogma. To be sure, Powell is no radical. His moderate racial principles are largely acceptable to many blacks because they're not bad for a guy who buys the Republican line, some of its hooks and not many of its sinkers. Unlike Congressman J.C. Watts, the black Republican from Oklahoma who'd just as soon fish all day with his conservative colleagues than cut the race bait. Indeed, Powell's beliefs run the same blush of racial centrism that coursed through the Clinton Administration over the past eight years. The difference is that such moderates, and a sprinkling of liberals, had plenty of company in the Clinton Administration. In a Bush Administration, Powell is, well, a hanging chad.
Of course, Powell's beliefs will have little substantive impact on his future boss's domestic policies, because he has been dispatched to foreign fields where Bush surely needs the help. So what looks like a plum for black folk may be a pit. True, no black person has ever served as Secretary of State. But once we get past the obligatory gratitude black folk are called on to display when conservative whites finally do something halfway decent, the fact is that Powell will have little influence on the public policies that may hamper black progress under a Bush Administration. Powell has not been nominated as Secretary of Health and Human Services, so his input on welfare, for instance, is lost. Instead, if confirmed, Wisconsin Governor Tommy Thompson will practice his widely praised variety of welfare reform, a policy that on both the local and national level has had a horrendous effect on millions of poor blacks. Neither is Powell slated to be the Attorney General, where he may choose the civil rights czar, who carves the policy groove on race in the Justice Department. Instead, that honor may fall to John Ashcroft, an ultraconservative whose opposition to black interests is destructive. An omen of things to come was glimpsed starkly in Ashcroft's contemptuous scuttling of the nomination of black Missouri Supreme Court Justice Ronnie White for the federal bench. Not only is Powell's value to Bush on race largely symbolic, that symbolism will more than likely be used to cover policies that harm the overwhelming majority of black Americans who were never persuaded by Powell to join the party of Lincoln (Continentals).
Rice and Paige may be lesser-known political quantities, but they are nonetheless instructive of Bush's racial politics. Rice, the former Stanford provost and assistant national security adviser for President George H.W. Bush, is not as vocal a supporter of affirmative action, preferring a lukewarm version of the policy that may comport well with Bush's nebulous "affirmative access." At Stanford, Rice was not nearly as aggressive as she might reasonably have been in recruiting black faculty, failing to match the efforts of equally conservative universities like Duke. And her record of advising the senior Bush on national security matters indicates that she was a blue-blood conservative in black face.
As for Paige, his my-way-or-the-highway methods have yielded mixed results for the predominantly black and Latino students in Houston, where he has served six years as superintendent of schools. A proponent of annual standardized tests, a measure heartily supported by Bush, Paige has overseen rising test scores while all but abandoning students who couldn't pass muster. Moreover, Paige supports the use of tax money to fund private education, a policy favored by Bush and many blacks but that could have deleterious effects on poor families. The lure of vouchers is seductive, but it fails to address the fact that there is hardly enough money available to make a real difference to those students whose parents are financially beleaguered.
With Rice's nomination, the point may be that a black can be just as staunch in spouting conservative foreign policy as the next wonk. With Paige, the point is that a black can promote the sort of educational policies that help some black folk while potentially harming a larger segment of the community. It is clear that such a state of affairs does not constitute racial progress. The irony is that Powell, Paige and Rice were chosen in part to prove an inclusiveness that is meaningless if their very presence comes at the expense of representing the interests of the majority of black folk, especially those poor and working-class folk who are vulnerable and largely invisible. The lesson the Republicans would have us learn is that not all blacks think alike, that we are no ideological monolith in liberal captivity. The real lesson may be that a black face does not translate into a progressive political presence that aids the bulk of black folk. Especially when that face must put a smile on repressive policies that hurt not just most blacks but those Americans committed to radical democracy. If that counts as racial progress, we need an immediate recount.
The establishment verdict is in: President-elect Bush made an astute choice by tapping Rod Paige, Houston's School Superintendent, to head his Education Department. The New York Times blessed the nomination as "wise," and both major teachers' unions have chimed in with support.
On most of the hot-button questions, Paige is a relatively uncontroversial pick. About vouchers, he has written, "We believe that public funds should go to students, not institutions, and there may be a time when vouchers will be part of the mix." (A limited voucher program in Houston was so modest and so narrowly designed that virtually no one took advantage of it.) Paige is a supporter of "performance pay" for teachers and a fairly strong proponent of a skills-based curriculum, especially phonics, but not to the point where he has openly horrified anyone in the teachers' unions or on the educational left. (Privatization, however, is Paige's one potential skeleton. He contracted with the for-profit Community Education Partners to renovate an old Wal-Mart and take in students expelled from other schools in the district. The Houston Press has reported that CEP falsified academic records to stay in good standing in the district. Paige defends the school, and the local teachers' union loves it because it exiles troublemakers. But when Paige touts the decline in violence in his district, it's important to keep this warehousing policy in mind.)
The basis for Paige's seeming pragmatism, and the core of his relationship with Bush, is "accountability." Both men believe strongly in a descending order of public liability, beginning with the governor, on down to district administrators, principals, teachers and ultimately arriving at pupils themselves: All get measured, and publicly lauded or shamed, by the outcome of the Texas Assessment of Academic Skills, the state-designed standardized test administered annually to public schoolchildren in third through eighth grades. (Passing a tenth-grade TAAS is required before a student can graduate from high school.) Both Paige and Bush staked their reputations on rising TAAS scores, and clearly both would like to see the Texas system--blending autocratic, centralized accountability standards with flexibility on how to satisfy them--bumped up to the federal level. But were the numbers truly what they said they were? And was placing both students and schools on a single-indicator model of performance good for Texas public education?
To begin with, almost none of the independent measures of student performance have confirmed the gains Paige and Bush trumpet on the TAAS. ACT and SAT scores have stagnated, and on the single achievement Bush takes most seriously--early reading ability--the National Goals Panel, by Bush Senior in 1989 to monitor each state's progress on education, found that "between 1992 and 1998 there was no significant change in the percentage of [Texas] public school fourth graders who met the Goals Panel's performance standard in reading." A recent RAND study has come to, at best, mixed conclusions on the Texas "miracle." The most recent compared TAAS scores with the performance of Texas schoolchildren on a national exam. By this benchmark, only the math scores of white fourth graders showed meaningful improvement. The common explanation for these discrepancies has been that emphasis on TAAS, having developed into an institutional mania, forces teachers to teach test-preparation materials in lieu of a full subject curriculum. In other words, instead of receiving an education, students are drilled on how to pass a single multiple-choice exam. Worse, schools now shunt more kids into special ed (where they are exempted from TAAS), hold them back in the ninth grade (to avoid the critical tenth-grade assessment) or even quietly encourage the worst test-takers to stay home on TAAS day (there is no makeup date).
The Bush-Paige system of accountability put such enormous pressure on educators to produce rising scores that inflating special-ed exemptions--and eventually out-and-out cheating by teachers and principals--became scandals. When Paige cracked down on both in 1999, scores went, in Paige's own words, "violently" down. Furthermore, with graduation rates part of the accountability mix, not to mention Paige's own compensation package, a kind of, well, fuzzy math now governs the calculation of who actually completes school. Both a conservative and a liberal gadfly group have protested, independently of each other, for years that Houston's graduation rates are wildly exaggerated, and recently Walter Haney, a Boston College education professor, has noted that "there was a sharp upturn in numbers of young people taking the GED tests in Texas in the mid-1990s." The GED, a high-school-equivalency test, allows students to evade TAAS, and it removes them from the official graduation scorecard.
The simple question to Paige should be: Before we confirm you, and before we move to a Texas-style system of accountability nationally, can you assure us that Houston's educational gains weren't a mirage? That the culture of testing is good for schools? There have been widespread reports of test-prep rallies, school-sanctioned all-night crams, schools forgoing basic educational services to buy expensive commercial study guides.
And testing gets to a deeper commonality between Bush and Paige. As Paige has written, "Nearly three-quarters of Houston's students are disadvantaged, but the factors that make them disadvantaged have nothing to do with ability to learn," a sentiment Bush echoed neatly when at Paige's appointment he said, "He understands that we don't give up on any child, regardless of their background." This sounds caring enough, but it has an edge: Poverty will not be an excuse. This in turn dovetails all too nicely with the culture of testing, which is often Procrustean in ignoring the vastly different social legacies children bring with them to their first day at school.
The tendency to paper over a young pupil's background, as well as the comfort both Paige and Bush draw from purely quantitative, rather than qualitative, measures of a child's well-being, will make a critical difference at the level of policy: Bush has promised to move Head Start from the Health and Human Services Department to Paige in Education, converting it from an antipoverty program for preschoolers into, essentially, a phonics program for early reading. One Head Start founder has already publicly fretted that its broader mission--attending to the health and welfare needs of at-risk children--might be in jeopardy. Notwithstanding the friendly public reception thus far, there should be no shortage of questions for Paige before the reins of federal education policy get handed over.
House GOP whip Tom DeLay will do his best to pull the President to the right.
John Ashcroft's nomination as Attorney General is the first installment on George W. Bush's enormous political debt to the radical right. Remember back in early February when Bush's campaign for the Republican nomination was on the ropes? John McCain had beaten him badly in New Hampshire and had just broken through Bush's attempt to keep him off the New York State primary ballot. The McCain campaign was on fire in South Carolina, and the so-called Bush firewall in Michigan was collapsing. A loss in South Carolina would have all but ended the Bush campaign. A shaken Bush did what he had to in order to win there--he sold his soul at Bob Jones University. The rumor was that he made a Faustian bargain with the radical right to give them the Justice Department and the federal judiciary if they would save his candidacy. Apparently it worked. Right-wing religious fundamentalists defeated McCain in South Carolina and provided the shock troops to derail him in Republican-only "closed primary" states, where McCain was cut off from his natural constituency.
After Bush secured the nomination, he seemed to signal his acceptance of the deal by praising Justices Antonin Scalia and Clarence Thomas. The radical right responded with a surge of support and, more important, with the gift of silence spared Bush from having to acknowledge his debt. Five members of the Supreme Court, including Scalia and Thomas, sealed the deal by anointing Bush as President-elect without the formality of his winning the election. Now the debt to the Christian right has come due.
Ordinarily, Presidents have the right to use Cabinet nominations to pay political debts. If Gore had not only won the most votes but had actually been allowed to become President, organized labor and the civil rights movement would now be lining up to collect their debts. In an ordinary presidential election, the winner enjoys the right to call the shots on policy as the political surrogate for the electoral majority. Thus, if this were an ordinary election it would be wrong to oppose John Ashcroft's nomination on political grounds. But Bush didn't win an electoral majority. He lost the national popular vote by more than 500,000 votes. He may have lost the Electoral College as well, obtaining Florida's crucial twenty-five electoral votes through a Supreme Court opinion that prevented an accurate vote count.
Don't get me wrong. George W. Bush is the President-elect. Respect for the rule of law requires us to follow the Supreme Court's ruling imposing Bush on the nation. But a President-elect who has been rejected by the majority of voters, and who may be taking office only because the Supreme Court refused to permit all the ballots to be counted in Florida, has no automatic right to saddle us with an extremist Attorney General who has just been rejected by the voters of his own state and who is pledged to wage war on behalf of a right-wing ideology that has been firmly rejected by most Americans.
Democratic senators who would ordinarily be inclined to allow the President-elect to form his Cabinet without opposition should not hesitate to oppose Ashcroft's nomination. The radical right hasn't earned control of the Justice Department, or the right to pick federal judges in the image of Scalia or Thomas. What President-elect Bush is entitled to from all Americans is respect for his office and cooperation in attempting to form and administer a centrist government. But there is no duty to cooperate in forming an extremist government. That is why the Democrats must use their "earned" 50-50 split in the new Senate to block the Ashcroft nomination. Not because Ashcroft is a bad man. He is, by all accounts, a decent man. Not because Ashcroft is a racist. He is, apparently, free from overt racial bias. But because he stands for terrible policies that would strike at the core of the American consensus. He stands for denying women freedom of choice. Unlike many principled foes of abortion, however, Ashcroft's reverence for human life does not prevent him from being an enthusiastic supporter of capital punishment. He stands for weakening the civil rights laws. He stands for eroding the wall between church and state. He stands for more censorship of free speech.
For once, let's have a vigorously contested confirmation hearing on Ashcroft that doesn't spiral down to character assassination. This is not about Ashcroft's competence. This is not about his honesty or his decency. It's about his politics--and whether George W. Bush has the right to impose the agenda of the radical right on a nation that has rejected it. If there is an iota of courage left in the forty-one Democratic senators it would take to sustain a filibuster, they'll rise up and say to President-elect Bush: We will not cosign the payment of your debt to the radical right by surrendering the Justice Department and the federal courts. The price for the nation is just too high.
Just how bad an Attorney General would John Ashcroft be? And is his nomination worth fighting? To answer the first question, talk to those who have experienced Ashcroft up close and personal. Like Harriet Woods, Missouri's lieutenant governor during the first of Ashcroft's two terms as that state's chief executive: She calls him "a disaster for minorities and for women." Or like retired Missouri Supreme Court Judge Charles Blackmar. Blackmar--a Republican appointee--accused Senator Ashcroft of "tampering with the judiciary" by blocking the federal court nomination of the amply qualified Missouri judge Ronnie White. Ashcroft opposed Judge White, an African-American, on the ostensible grounds that he voted against too many death sentences, leading Blackmar to this pungent assessment of the philosophy guiding Bush's chief law officer in the the crucial job of appointing federal judges: "The senator seems to take the attitude that any deviation is suspect, liberal, activist."
Ashcroft's sense of what constitutes "deviation" is broad even by the standards of the right, and his hard-line opposition to abortion isn't the half of it. The list of things Ashcroft is on record opposing is a catalogue of American social progress: contraception, school desegregation, solar energy, government assistance for woman- and minority-owned businesses, fuel efficiency standards for cars, workplace-discrimination protection for homosexuals, campaign finance reform and the nuclear test ban treaty. As governor, he even prohibited over-the-candy-counter sale of bonbons with liqueur centers.
It is African-Americans who will first take it on the chin from an Ashcroft Justice Department. As Missouri attorney general in the 1970s, Ashcroft initially honored the moderate, integrationist legacy of his mentor and predecessor, John Danforth. But he soon learned the value of playing hard-line race politics, fighting tooth and nail against desegregation of the massively unequal schools in Kansas City and St. Louis all the way to the US Supreme Court and spurning every attempt at an out-of-court settlement. Ashcroft won a tough GOP primary for governor in 1984 with attack ads accusing his opponent of being soft on desegregation. In the words of the St. Louis Post-Dispatch editorial page, he has "built a career out of opposing school desegregation...and opposing African-Americans for public office."
Reports have it that Bush's first favorite for AG was the more moderate Governor Marc Racicot of Montana--who, the story goes, was shot down by the far right. That creative spin control allows the administration-elect to play to both its flanks--deferring to the right with the nomination while assuaging moderates with the fiction that this nomination doesn't reflect Bush's deepest convictions. In fact, Ashcroft's nomination embodies one of the fundamental lessons of the first George Bush Administration: that the justice system is the arena that counts for right-wing patronage. The permanent elite of Republican technocrats like Donald Rumsfeld can have the run of the store as long as Justice turns out a steady stream of antiabortion briefs and far-right judge nominees.
Watch for a confirmation strategy that echoes fellow Danforth protégé Clarence Thomas in 1991, beginning with Ashcroft lobbying individual senators, followed by a confirmation narrative emphasizing Ashcroft's childhood--how his minister father befriended black missionaries--over the substance of Ashcroft's record as segregationist and antichoice absolutist. Once again, leading the Senate Judiciary Committee Democrats will be Joe Biden, whose vanity and strategic incompetence contributed mightily to Thomas's narrow confirmation. Biden, reprising his fatal 1991 indecision, has declared he is "inclined" to support Ashcroft.
So is this a nomination worth fighting? Other Bush Cabinet nominees also pose direct threats to specific constituencies, but there is real urgency to laying down a marker on Ashcroft. The threat his nomination poses cuts across constituencies and issues, and the stakes are every bit as high as in the Clarence Thomas and Robert Bork Supreme Court nomination fights. The Justice Department has expanded its authority as has no other agency in recent years. Through appointments to the federal bench, Supreme Court arguments and priorities, the appointment of US Attorneys and the enforcement of civil rights and antitrust law, any Attorney General can change the country in profound ways. All the more so with Ashcroft: not just because of his regressive constitutional views but because Bush appears likely to vest more power in his advisers than any President in memory.
And this is a fight that is winnable, despite Biden's early bumbling and the irrelevant conventional wisdom that the Senate will defer to one of its own. (Remember John Tower, whose Senate record could not rescue his nomination as Bush Senior's Defense Secretary?) The Clinton impeachment hearings and trial showed repeatedly that most Americans have little patience with moral extremists like Ashcroft, and it shouldn't take much to convince a broad segment of the public that he is out of touch. Civil liberties and corporate regulation have a currency and a constituency they lacked when public-interest groups beat Bork in 1986. With public support for the death penalty falling, with even GOP governors questioning the wisdom of the drug war, with Republican Supreme Court Justices reaffirming Roe v. Wade and a Republican Congress softening the Cuba embargo, Ashcroft looks like a dinosaur, the anachronistic spawn of Strom Thurmond and Jesse Helms.
Besides, whatever the outcome, a fight against Ashcroft will generate rather than expend political capital for civil rights and civil liberties advocates. Democrats gained from the Bork and Thomas confirmation fights as the public became educated about the real agenda of conservatives and as Beltway-bound liberal lobbies reconnected to grassroots constituencies. There is every reason to think Ashcroft could be defeated--and even if he is not, fighting his confirmation could lay the foundation for a new coalition, a shadow Justice Department that will dog the Bush Administration's every judicial nomination and every reversal of civil rights. This is no time to roll over.
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Capital punishment will be one of the defining issues of the coming year.
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