Ashcroft Appointment Worth All-Out Fight

by Bruce Shapiro

Ashcroft's sense of what constitutes "deviation" is broad even by the standards of the right, and his hard-line opposition to abortion isn't the half of it. The list of things Ashcroft is on record opposing is a catalog of American social progress: contraception, school desegregation, solar energy, government assistance for woman- and minority-owned businesses, fuel efficiency standards for cars, workplace-discrimination protection for homosexuals, campaign finance reform and the nuclear test ban treaty. As governor, he even prohibited over-the-candy-counter sale of bonbons with liqueur centers.

It is African-Americans who will first take it on the chin from an Ashcroft Justice Department. As Missouri attorney general in the 1970s, Ashcroft initially honored the moderate, integrationist legacy of his mentor and predecessor, John Danforth. But he soon learned the value of playing hard-line race politics, fighting tooth and nail against desegregation of the massively unequal schools in Kansas City and St. Louis all the way to the Supreme Court and spurning every attempt at an out-of-court settlement. Ashcroft won a tough GOP primary for governor in 1984 with attack ads accusing his opponent of being soft on desegregation. In the words of the St. Louis Post-Dispatch editorial page, he has "built a career out of opposing school desegregation...and opposing African-Americans for public office."

Reports have it that Bush's first favorite for AG was the more moderate Governor Marc Racicot of Montana -- who, the story goes, was shot down by the far right. That creative spin control allows the administration-elect to play to both its flanks -- deferring to the right with the nomination while assuaging moderates with the fiction that this nomination doesn't reflect Bush's deepest convictions. In fact, Ashcroft's nomination embodies one of the fundamental lessons of the first George Bush Administration: that the justice system is the arena that counts for right-wing patronage. The permanent elite of Republican technocrats like Donald Rumsfeld can have the run of the store as long as Justice turns out a steady stream of antiabortion briefs and far-right judge nominees.

Watch for a confirmation strategy that echoes fellow Danforth protege Clarence Thomas in 1991, beginning with Ashcroft lobbying individual senators, followed by a confirmation narrative emphasizing Ashcroft's childhood -- how his minister father befriended black missionaries -- over the substance of Ashcroft's record as segregationist and antichoice absolutist. Once again, leading the Senate Judiciary Committee Democrats will be Joe Biden, whose vanity and strategic incompetence contributed mightily to Thomas's narrow confirmation. Biden, reprising his fatal 1991 indecision, has declared he is "inclined" to support Ashcroft.

So is this a nomination worth fighting? Other Bush Cabinet nominees also pose direct threats to specific constituencies, but there is real urgency to laying down a marker on Ashcroft. The threat his nomination poses cuts across constituencies and issues, and the stakes are every bit as high as in the Clarence Thomas and Robert Bork Supreme Court nomination fights. The Justice Department has expanded its authority as has no other agency in recent years. Through appointments to the federal bench, Supreme Court arguments and priorities, the appointment of U.S. Attorneys and the enforcement of civil rights and antitrust law, any Attorney General can change the country in profound ways. All the more so with Ashcroft: not just because of his regressive constitutional views but because Bush appears likely to vest more power in his advisers than any President in memory.

And this is a fight that is winnable, despite Biden's early bumbling and the irrelevant conventional wisdom that the Senate will defer to one of its own. (Remember John Tower, whose Senate record could not rescue his nomination as Bush Senior's Defense Secretary?) The Clinton impeachment hearings and trial showed repeatedly that most Americans have little patience with moral extremists like Ashcroft, and it shouldn't take much to convince a broad segment of the public that he is out of touch. Civil liberties and corporate regulation have a currency and a constituency they lacked when public-interest groups beat Bork in 1986. With public support for the death penalty falling, with even GOP governors questioning the wisdom of the drug war, with Republican Supreme Court Justices reaffirming Roe v. Wade and a Republican Congress softening the Cuba embargo, Ashcroft looks like a dinosaur, the anachronistic spawn of Strom Thurmond and Jesse Helms.

Besides, whatever the outcome, a fight against Ashcroft will generate rather than expend political capital for civil rights and civil liberties advocates. Democrats gained from the Bork and Thomas confirmation fights as the public became educated about the real agenda of conservatives and as Beltway-bound liberal lobbies reconnected to grassroots constituencies. There is every reason to think Ashcroft could be defeated -- and even if he is not, fighting his confirmation could lay the foundation for a new coalition, a shadow Justice Department that will dog the Bush Administration's every judicial nomination and every reversal of civil rights. This is no time to roll over.