The blood-letting is over for now. After the Senate votes today, John Ashcroft will no longer be the partisan political pi?ata of the moment but a distinguished attorney general of the United States. His attackers, however, will have warned President Bush about the next Supreme Court appointment and sent their fundraising machines into overdrive.
Sadly, this process concluded with no more principle than it began. When the Judiciary Committee voted on the nomination, for example, Sen. Joseph Biden, D-Del., lectured the nominee about how his “attitude toward minorities” was “insensitivity in the extreme.” This indictment was based on the nominee’s actions, including long-past opposition to certain approaches for desegregating public schools. Yet back then, Biden himself repeatedly voted to prevent the Department of Justice from using busing to desegregate public schools.
When Sen. Patrick Leahy, D-Vt., announced his opposition on Monday, his speech reflected the disreputable tactics used against Sen. Ashcroft. Some of his statements, for example, simply made no sense. Leahy talked of some “Ashcroft evolution” and then, just minutes later, accused the nominee of holding “unyielding” positions on important issues. Senator Leahy first claimed he was “not objecting to this nominee simply because I disagree with him on ideological grounds.” Within just the next few sentences, however, he admitted that his opposition was indeed “based on … what positions [Ashcroft] has taken while serving in high public office” and on what Ashcroft’s “priorities” and “choices” would be as attorney general.
Despite the confusion, the two central lines of attack against Sen. Ashcroft reveal what the fight was really all about. First, his attackers argued that Senator Ashcroft’s views or positions on issues are “divisive” (Sen. Schumer, D-N.Y.), “out of the mainstream” (Sen. Dianne Feinstein, D-Calif.) and “extreme” (Sen. Dick Durbin, D-Ill.). This attack says that the content of a nominee’s views — rather than his conviction about them — is disqualifying.
This is a dishonest argument. No one, of course, would accept the notion of denying a President his appointees based only on political differences, especially when this argument comes from those trumpeting bipartisanship and cooperation. But framing this argument in terms of “extremism” or some kind of “mainstream” doesn’t help because such labels still require a benchmark. That benchmark, of course, is the politics of those making the charge. So it all comes back to the position of opposing nominees who do not share the opponents’ politics.
Ashcroft’s attackers next claimed that, whatever his views, he would not be able to put them aside and enforce fairly even laws he disagrees with. Senator Leahy warned against appointing as Attorney General someone “who puts ideology and politics above the law.” Sen. Herb Kohl, D-Wis., said the nominee would “push and prod the law” to conform to his personal beliefs. And Schumer doubted that, as attorney general, Ashcroft could just “turn off” his “passionate advocacy of deeply held convictions.”
This argument is as dishonest as the first one. Taken at face value, it would disqualify anyone — including those who make it — from serving as attorney general who had ever vigorously advocated political positions or had deep convictions about anything. These senators, though, had no problem confirming former Attorney General Janet Reno despite passionate advocacy during her earlier prosecutorial career in Florida. They would hardly agree that Schumer’s advocacy of gun control, his New York colleague Senator Hillary Clinton’s advocacy of health care reform, or the campaign finance crusade by Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., disqualified them from serving. And speaking of Miss Reno, these senators were unfazed by critics who said her record in Florida predicted she would refuse to enforce obscenity laws she disliked. And these senators said nothing as that prediction came true.
The breadth of this dishonest argument is astonishing. Sen. Ashcroft has long said, even passionately advocated, that judges must not (in Senator Leahy’s words) put “ideology and politics above the law.” It’s called judicial activism. Instead, Ashcroft has said that the Constitution can only be changed through the legitimate amendment process prescribed in Article V. Now his attackers criticize him for insisting that judges not do what they say the attorney general may not do, namely, push or prod the law to suit personal beliefs.
The truth is that Sen. Ashcroft’s attackers are unconcerned about passionate advocacy, the content of views, or constitutional change so long as their political agenda is advanced. And this is the heart of the matter. His attackers live in a completely political world and they want what they want without regard to how they get it. If the attorney general is a leftist, then pushing and prodding the law is fine, turning off passionate advocacy unnecessary, and everything is in the mainstream. If the attorney general is a conservative, then pushing and prodding the law is dangerous, turning off passionate advocacy essential, and everything is extreme and divisive. If the results are to their leftist liking, judicial activism is fine; if the results don’t suit them, then even legitimate constitutional amendments are illegitimate. It’s their way, or no way.
The Ashcroft nomination thus presented a very important choice, one that will come up again with the next Supreme Court vacancy. It’s the choice between principle and politics.