Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The civil rights establishment and abortion rights groups will oppose the confirmation of John Ashcroft as attorney general. The reasons given for their opposition are unpersuasive, but the underlying issues raised are nonetheless interesting. Listed below are the charges made, and an analysis of each. � Ashcroft is a racist because he led the opposition to the confirmation of Missouri Supreme Court Judge Ronnie White, who is black, to a federal district judgeship. This will be the implicit, and sometimes explicit, principal charge against Ashcroft. It is baseless. A news analysis in The Washington Post, not exactly an organ of the right wing, concluded that “a review of White’s nomination … provides no evidence of racism by the man who would be America’s top law enforcement officer,” and that “no one has produced evidence that racial animus had anything to do with his efforts to stop White.” To the contrary: Republicans are extremely sensitive to charges of racism and will bend over backward to avoid being labeled as anti-black. This has not stopped Democrats and their special-interest allies from making the charge, however. Reps. William Clay and Maxine Waters, both Democrats from California, flatly called Ashcroft a racist. But there is no evidence to support the charge, and indeed Ashcroft has voted in favor of confirming the overwhelming majority of the black judges he has reviewed, opposing only one — Frederica Massiah-Jackson — besides White. Additionally, Ashcroft appointed many African-Americans while governor, including the first to the state’s second highest court. � Ashcroft is a political opportunist because of his opposition to Ronnie White. The same Washington Post news analysis, while concluding that there was no evidence of racial bias in Ashcroft’s opposition, also found that there was “strong evidence of bare-knuckled opportunism.” As Stuart Taylor Jr. wrote when the Senate voted on Judge White, White’s record on upholding death penalty challenges was not far below the averages for Ashcroft’s own appointees as governor and well above the average for the Ashcroft appointee that White replaced. Thus, the claim is that Ashcroft used White as a way to attack Gov. Mel Carnahan — who had appointed White and was challenging Ashcroft’s re-election as senator. But a judge’s record cannot be reduced to such percentage points. If we focused on cases in which there were divided opinions on the court in death penalty cases, White dissented four times as often as the next most dissenting judge. And what senator is not political? Gov. Carnahan appointed a judge who voted to give a new trial to Jimmy Johnson, a white man who killed a deputy sheriff by shooting him in the head, execution-style; then shot to death a sheriff’s wife at a family Christmas party in her home; shot four times but did not kill another deputy; then shot to death a sheriff and another deputy — and then pleaded that this had all been triggered by post-traumatic stress syndrome dating from his service in Vietnam. Pretty tough not to make some political hay out of that. And pretty tough to argue that criticizing such a ruling makes one unqualified to be attorney general. � Ashcroft opposes abortion and thus won’t enforce laws that protect abortion clinics and otherwise safeguard a woman’s right to choose. It is quite a leap from opposing a law to refusing to enforce it. It would be ridiculous to require every attorney general to say he agreed with every law he would be charged with enforcing. There are volumes and volumes of the U.S. Code and the Code of Federal Regulations, and there is no one who agrees with every line of their contents. For an executive branch officer to refuse to enforce a duly enacted law simply because he disagreed with it would be a clear violation of the separation of powers. Once Congress makes a law, with or without the president’s consent, the latter must execute it. The only exception is if the law is unconstitutional. In that case, the attorney general’s oath to the higher law, the Constitution, can trump his duty to enforce a statute. But one doubts that this principle will come into play in the context of abortion. Even if one does not believe that there ought to be a constitutional right to have an abortion, it is hard to see why this would make a law protecting abortion clinics, for example, so clearly unconstitutional that an attorney general would refuse to enforce it. For instance, it would be ridiculous for the Supreme Court to rule that there is a constitutional right to buy cigarettes, but if it did, and people then started blowing up tobacco shops, a law prohibiting such violence would clearly be valid even if the Court’s ruling were dubious. Finally, the attorney general could not refuse to enforce a law for resting on an unconstitutional premise when the Court itself had established that premise. � Ashcroft will not vigorously enforce the civil rights laws, particularly those that require affirmative action. This is an even weaker argument than the preceding one. While Ashcroft does oppose abortion, there is no reason to suppose that he disagrees with the underlying policy of the anti-discrimination laws, let alone is so adamantly opposed to those laws that he would shirk his constitutional duty to enforce them. And the constitutionality of, for instance, the Civil Rights Act of 1964 was settled years ago by the Supreme Court. As governor, Ashcroft signed into law a bill that made Rev. Martin Luther King Jr.’s birthday a state holiday, and laws honoring Scott Joplin and George Washington Carver. He led the fight to save Lincoln College, founded by African-American soldiers. He signed into law Missouri’s first hate crimes statute, and convened — with Sen. Russ Feingold, D-Wis. — the only Senate hearing on racial profiling, which he condemned as unconstitutional. His wife, Janet, has been a professor at Howard University for five years. This is not a man who hates civil rights. Nor is there any reason to suppose that Ashcroft opposes most “affirmative action.” Its original meaning was vigorous, aggressive, proactive anti-discrimination. Later it came to include special efforts to recruit from as wide a pool as possible, and to ensure that irrational and discriminatory vestiges of past policies were removed. This sort of affirmative action is opposed by no reasonable person today. Indeed, the only kind of affirmative action that is controversial and that Ashcroft might balk at is preferential treatment in favor of certain groups and, therefore, against others. But the principal civil rights statutes the government is charged with enforcing — again, the prime example being the Civil Rights Act of 1964 — mandates no such “affirmative action.” � Ashcroft will urge the Supreme Court to overturn Roe v. Wade. Well, indeed he might. There is nothing illegal or unethical about that. Sometimes the Supreme Court makes mistakes, and the executive branch can urge corrections on it. It is not disrespectful or unprecedented to do so. The Justice Department successfully sought, for instance, to overturn Plessy v. Ferguson when it filed its brief in Brown v. Board of Education. To argue that Roe v. Wade was wrongly decided is perfectly respectable. And there are other, more practical reasons why it would make no sense to vote against Ashcroft on this issue. There will be, at most, only one or two opportunities to argue that Roe ought to be overturned. That argument can be made only to the Supreme Court, and the Court is not likely to want to hear such cases more than once or twice, at most. And when that opportunity does arise, the call on what to do will not be made by Attorney General Ashcroft. It will instead be made by President Bush. So this issue may not arise at all, will arise probably only once if it does, and will not be resolved by Ashcroft in any event. An odd issue, then, on which to hinge a vote. � Ashcroft is incompetent, inexperienced, and corrupt. Of course, these are charges that you will not hear. Ashcroft graduated from Yale and then University of Chicago Law School, and has been a state attorney general (eight years), a governor (eight years), and a law professor (five years). He served on the Senate Judiciary Committee and chaired the Senate Judiciary Subcommittee on the Constitution. These posts obviously make him extraordinarily well-qualified to serve as the nation’s attorney general. Indeed, in terms of credentials, it is hard to think of anyone who is more qualified. During these years of service, moreover, there is no ethical blemish. It is simply absurd, then, to assert — as Ralph Neas of People for the American Way did — that “John Ashcroft is the antithesis of the person required to lead the Department of Justice.” Senators typically, and properly, allow the president to choose his own team, even if that means approving some choices with whom a senator has policy disagreements. Otherwise, every appointment becomes a bloody fight. Thus, Janet Reno — despite having much less experience than Ashcroft and being as objectionable on policy issues like abortion and the death penalty to the right as Ashcroft is to the left — was confirmed 98-0. There are exceptions to this rule of deference, but none of them applies in the case of John Ashcroft. He has no deep character flaws, no lack of experience and competence, no lack of commitment to enforcing the law, no bizarre interpretations of the Constitution. It would be a travesty to deny his confirmation. Roger Clegg is general counsel of the Center for Equal Opportunity, a D.C.-based think tank. He can be reached at [email protected] His column, “Discriminating Eye,” appears monthly in Legal Times.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.