WASHINGTON--"If John Ashcroft is telling the truth," a Senate Democratic staffer remarked, "George Bush has given us another David Souter."
The half-jesting comment was a reference to former President Bush's appointment of Souter to the Supreme Court, where the man who supposedly had solid New Hampshire conservative credentials has become a mainstay of the liberal bloc.
Ashcroft, the former Missouri senator nominated as attorney general by the new President Bush, is by far the most controversial of his Cabinet appointees. He is a hero of the Christian right, with a long record of opposition to abortion, gay rights and gun control measures and what might charitably be called a spotty history on racial issues.
But when I listened to portions of his testimony last week and read the entire Senate Judiciary Committee transcript, it appeared that Ashcroft had committed himself to policies not much different from what one would have expected from an Al Gore appointee.
The Roe vs. Wade abortion rights decision, he said, is "the settled law of the land. The Supreme Court has signaled very clearly it does not want to deal with that issue again. I don't think it is the agenda of the president-elect of the United States to seek an opportunity to overturn Roe. And as his attorney general, I don't think it could be my agenda."
Ashcroft pledged he "will vigorously enforce and defend the constitutionality" of the law barring harassment of patients entering abortion clinics. "I don't believe there is a First Amendment right to coercion and intimidation. I will investigate violations thoroughly. I will direct U.S. attorneys to direct resources to that on a priority basis."
On gays: "I will enforce the law equally without regard to sexual orientation. It will not be a consideration in hiring at the Department of Justice."
On guns: After promising to support the ban on assault weapons (which he opposed as a senator) and its reauthorization in 2004, Ashcroft said that if Congress required licensing and registration of other guns, "I would defend it in court and argue its constitutionality. I don't believe the Second Amendment to be one that forbids any regulation of guns."
On race: "I pledge to you that if I'm confirmed as attorney general, the Justice Department will meet its special charge. Injustice against individuals will not stand--no ifs, ands or buts. Racial profiling is wrong. I think it's unconstitutional. I will make racial profiling a priority of mine." Also, he pledged unequivocally to continue the study, ordered by President Clinton, of racial disparities in the administration of the death penalty. "When the material from those studies comes, I will examine them carefully and eagerly to see if there are ways for us to improve the administration of justice."
Some Democrats on the Judiciary Committee are openly skeptical that a man who opposed so many of these policies will actually carry them out. But the promises they extracted from him are unequivocal. Ashcroft said he could be trusted to honor them, because as a former Missouri attorney general, "I understand that being attorney general means enforcing the laws as they are written, not enforcing my own personal preference." And, as Republican Sen. Jon Kyl of Arizona told him, "I expect you know how well you'll be treated if you go outside the bounds of the commitments you've made."
With that sanction in mind, Democrats in the 50-50 Senate probably have gotten as much of a guarantee from Ashcroft as they can expect. In my view, it would be enough to confirm him, were it not for one legacy of Ashcroft's past: the Ronnie White case.
The testimony at last week's hearing left no doubt in my mind that Ashcroft flagrantly distorted the record and views of White, the first African-American appointed to the Missouri Supreme Court, when he mobilized his fellow Republicans in 1999 to block White's elevation to the federal bench, on a party-line vote. The charge Ashcroft made that White's infrequent death penalty dissents showed "a criminal bent" was the worst kind of demagoguery. Although he was a member of the Judiciary Committee, Ashcroft never raised the issue while White's confirmation was being considered by that committee but launched a late attack that denied White an opportunity to confront and rebut the libel.
If Ashcroft and the president who selected him are serious about reassuring all Americans, and especially African-Americans, of their commitment to justice, they will find an early opportunity to remedy the gross injustice done to Judge White, by resubmitting his name for an appropriate appointment to the federal bench. More than an apology is merited, but so far, not even that has been forthcoming.
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