Cover Story


A shot over the bow liberals oppose Ashcroft as practice for Bush's first Supreme Court appointment

Issue: "Ashcroft: Under fire," Jan. 13, 2001

Almost as soon as George W. Bush announced his choice for attorney general-former Sen. John Ashcroft of Missouri-liberal interest groups unloaded. "An astonishingly bad nomination," said Ralph Neas, president of People for the American Way, which quickly joined with other liberal organizations to mobilize against it. Conservatives meanwhile began the new year by preparing to defend Mr. Ashcroft's nomination in what could become Mr. Bush's first major political battle. Mr. Ashcroft, a graduate of the University of Chicago Law School and a former attorney general and governor of Missouri, was elected to the Senate in 1994. During his term, he was a member of the Senate Judiciary Committee, and he took conservative positions on a wide variety of issues, including affirmative action and antitrust. He championed judicial restraint, opposed Clinton nominees on philosophical grounds, and was a sharp critic of the Clinton Justice Department. He also proposed and saw adopted the "Charitable Choice" provision of 1996 welfare-reform legislation that allows for government funding of faith-based anti-poverty groups. In the impeachment battle, he voted to convict President Clinton. Liberal groups such as PAW had hoped that Mr. Bush would select someone less conservative than Mr. Ashcroft to run the Justice Department. Mr. Bush considered Montana Gov. Marc Racicot, but selected Mr. Ashcroft after conservatives questioned Mr. Racicot's commitment to halting abortion and promoting school choice. For liberals, Mr. Bush's decision to go with an unblinking conservative-indeed someone described in news accounts as "a Christian conservative"-is their worst nightmare come true. As attorney general, Mr. Ashcroft would administer a large and far-flung department (more than 100,000 employees) that includes six litigating divisions, the offices of solicitor general and legal counsel, the Federal Bureau of Investigation, the Drug Enforcement Administration, the Immigration and Naturalization Service, the Bureau of Prisons, and the U.S. Marshal Service, not to mention the U.S. Attorneys. Mr. Ashcroft would be able not just to nudge the Justice Department in conservative directions but to help Mr. Bush fulfill his campaign pledge to nominate judges committed to judicial restraint. It's unusual for senators to oppose a former or current member nominated for the Cabinet, and Mr. Ashcroft appears to have created no enemies, and many friends, during his term of office. "I'd be surprised if he wasn't confirmed," said John Yoo, who served on the Judiciary Committee staff in 1995-96 and is now a law professor at the University of California at Berkeley. Still Mr. Yoo, like other supporters of the Ashcroft nomination, isn't surprised that liberal groups are joining in opposition. Liberals hope to make an issue out of then-Sen. Ashcroft's successful effort to defeat Missouri Supreme Court Judge Ronnie White's nomination for a federal judgeship. In 1999, Judge White's judicial nomination became the first to be defeated on the floor of the Senate-the vote broke along party lines, 54 to 45-since Robert H. Bork's in 1987. Mr. Ashcroft says he opposed the White nomination for two reasons: the judge's consistent bias against the death penalty, and opposition to his confirmation by law enforcement groups in Missouri. Mr. Ashcroft, then facing a stiff reelection battle with Gov. Mel E. Carnahan, persuaded his fellow Missouri senator, Christopher Bond, to withdraw his support for Judge White. On the day of the floor vote, he argued the case against the judge to the GOP caucus. Republican senators previously supportive of the nominee changed their votes out of deference to the wishes of the home-state senators. Judge White happens to be black, and his supporters claimed that Mr. Ashcroft led the opposition to him for racial reasons. Some even claimed he was a racist, and they are now reviving the charge: Nan Aron of Alliance for Justice said that Mr. Ashcroft engaged "in a hate crime against an eminently qualified African American solely for political gain." Mr. Ashcroft convincingly maintains that his opposition to Judge White had nothing to do with race. He points out that he supported 90 percent of Mr. Clinton's black judicial nominees and signed laws in Missouri recognizing Martin Luther King's birthday as a state holiday and Scott Joplin's house as a historic site. He has consistently criticized liberal judicial activists, whatever their skin color. Though no Democratic senator has announced opposition to Mr. Ashcroft, several have been sharply critical of his effort to block Judge White. A contentious confirmation battle might not succeed in blocking the Ashcroft nomination, since Republicans will have a one-vote edge in the new Senate. But it would, as Mr. Yoo pointed out, "put a shot over the bow of the conservative legal movement. For liberals, this would be spring training to prepare them for Bush's first Supreme Court nominee."

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