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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