John Ashcroft took office swearing on a stack of Bibles–on three of them, actually, one for each of his children–to run “a professional Justice Department that is free from politics.” Sure. That’s why he, or someone in the White House spin department, chose Supreme Court Justice Clarence Thomas to administer the oath. There are multiple messages here. There’s the photo-op-that-looks-like-America message; there’s the twin-martyrs-to-liberal-attacks message; and most important, there’s the wink-and-nod message conveying Ashcroft’s idea of constitutional interpretation. Thomas, let’s not forget, is the Supreme Court Justice who has written that Roe v. Wade is this century’s Dred Scott and who has held that prison guards punching out inmates’ teeth doesn’t constitute cruel and unusual punishment.
With Ashcroft confirmed, the symbolic terrain of abortion rights is where the Bush Administration seems determined to first test the boundaries of the politically possible, as evidenced by Bush’s provocative ban on federal funding of overseas family-planning agencies in the middle of the Ashcroft hearings. On Meet the Press just forty-eight hours before the Judiciary Committee acted, Vice President Cheney refused to rule out seeking to overturn abortion rights–despite Ashcroft’s confirmation conversion to Roe v. Wade as “settled law”–and made it clear that “trying to find ways to reduce the incidence of abortion” will be a top priority of the Ashcroft Justice Department.
And beyond abortion? Will W.’s determination to peel black support away from Democrats trump the new AG’s historic hostility to voting-rights reviews and desegregation suits? If Bush is serious about easing black mistrust, the first thing he needs to do is make sure Ashcroft names a serious and reputable deputy attorney general for civil rights, not an anti-affirmative-action ideologue. And if Ashcroft doesn’t give the department’s voting-rights lawyers latitude to follow up on the US Civil Rights Commission’s inquiries in Florida, all those multiracial photo-ops will be exposed as a bad joke. Another key issue: How far and fast will Ashcroft move in asking the Supreme Court to modify its longstanding ban on aid to parochial schools for purposes that primarily advance religion? Lowering that bar takes on new importance with the Bush Administration’s faith-based social-services initiative.
Ashcroft’s first high-level appointment–of Theodore Olsen as Solicitor General–is no surprise, given Olsen’s Supreme Court victory in the Florida case and his affiliation with the Clinton-hating center of conservative legal politics, The Federalist Society. Higher education affirmative-action cases–with universities trying to defend their admissions policies against reverse-discrimination claims–are piling up at the Supreme Court’s doorstep and will provide one of the first windows into how far Olsen and Ashcroft will go toward challenging established federal policies. Likewise an environmental case, Gibbs v. Babbitt, involving red wolves, with conservatives challenging the Endangered Species Act as unconstitutional. In the final hours of the Clinton Administration, Solicitor General Seth Waxman weighed in with a brief defending the act, and environmentalists are watching to see if Olsen rushes to submit a new brief to the Court.