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.
John Ashcroft lost his last election to a dead man — and the ghosts from that campaign still seem to haunt our attorney general. Perhaps more than any other recent chief legal officer of the United States, Ashcroft seems particularly responsive to the political constituencies who helped him secure his position in the Bush administration. Whether he is seeking to reverse Oregon’s voter-approved system of physician-assisted suicide or investigating members of Congress for intelligence leaks, Ashcroft has carried the water for both social and security conservatives in the Bush camp. In doing so, Ashcroft has demonstrated an ear finely attuned to the politics of constituent service. But the pitch of his politics marks an important, and perhaps troubling, shift in the politics of law enforcement — especially in these post-Sept. 11 times. Constituent service is a hallmark of representative government. Whether the task is bringing home the bacon of federal projects or massaging the Social Security Administration to deliver a senior’s monthly check, representatives who neglect these political housekeeping necessities find themselves booted out of office at the next election. Ashcroft’s defeat in the 2000 Missouri Senate race seems to have burned into him the need to deliver the goods to the folks who supported his candidacy. The only problem is that Ashcroft is no longer an elected politician, but the nation’s top law enforcement official. Ashcroft has, most notably, led the charge on the Bush administration’s legal front in the war on terrorism. Relying on an expansive reading of the Patriot Act he lobbied for, he has sought broad powers to wiretap without warrants and to detain “enemy combatants” indefinitely and without legal representation. But to curry favor with the National Rifle Association, he ordered the Federal Bureau of Investigation to stop using Brady Act records to review gun purchases by suspected terrorists. He frequently touts the need for localities, states and the federal government to coordinate and cooperate, at least in the war against terrorism. But in another context, to reward his pro-life supporters, he threatened to prosecute under federal drug laws Oregon doctors who took part in their state’s lawful and limited form of physician-assisted suicide for the terminally ill. So much for intergovernmental cooperation — at least when it gets in the way of rewarding political backers. SYMBOLIC POLITICS Many of Ashcroft’s looming political problems stem from his limited understanding of political accountability. He has repeatedly stated that the American people have charged this administration with a historic task of ridding the world of terrorism. In turn, he sees himself as accountable to the American people, as expressed by polling support for the war on terrorism. This kind of accountability requires a lot of public visibility. His over-the-top announcement (made via satellite from Russia) of the arrest of a “dirty bomb” conspirator and his prominent role in the sensationalistic arrests in the WorldCom and Adelphia corporate scandals reveal a classic electoral strategy of credit-claiming and symbolic politics. That works well when your goal is to boost polling numbers and win elections. But it does little to help the Department of Justice win its battles in Washington. The department’s new terror-fighting policy goals will eventually create institutional and constitutional conflicts with both the federal courts and Congress. These conflicts are necessary and healthy within a constitutional government in which power is divided. But Ashcroft’s understanding of the legal front in the war on terrorism — and his efforts to satisfy his political backers while simultaneously keeping the polling numbers high — demand that the Justice Department seek exemption from the kind of institutional review our system traditionally requires. Virtually every aspect of the legal war on terrorism has reduced the role of both judicial and congressional oversight, but those institutional actors will not permanently deal themselves out of the game. And when other institutional actors weigh in, they will not be so willing or quick to cede power. The recent 6th Circuit decision forcing the Justice Department to open deportation hearings is perhaps one early example. Sprinkled throughout John Ashcroft’s recent addresses and speeches are references to a historic challenge confronting our nation. At the Attorney General’s Awards Ceremony in July, Ashcroft stated, “We have been called to a new mission of justice that is rooted in cooperation, driven by excellence, secured by accountability, and focused on a single, overarching goal: to prevent future terrorist attacks.” Unfortunately for the attorney general, his “new mission of justice” and talk of cooperation, accountability and grand overarching goals must confront a constitutional design that is marked by conflict, not cooperation; by institutional checks, not popular accountability; and by fragmented policy incrementalism, not sweeping policy transformations. John Ashcroft the senator and governor could survive if he rewarded constituents and fed the polling beast. John Ashcroft the attorney general will need to do more. Douglas S. Reed is an assistant professor of government at Georgetown University and the author of “On Equal Terms: The Constitutional Politics of Educational Opportunity” (2001).

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.