Former Sen. John Ashcroft, R-Mo., is an able and accomplished man who won the respect of many Senate colleagues in both parties. But he is unfit to be Attorney General. The reason is that during an important debate on a sensitive matter, then-Sen. Ashcroft abused the power of his office by descending to demagoguery, dishonesty, and character assassination.
The debate was over President Clinton’s nomination of Missouri Supreme Court Judge Ronnie White to become a federal district judge. Although too liberal to be picked by a Republican President, White had shown himself to be an honest, skilled, and sometimes eloquent jurist, well within the moderate mainstream. But Ashcroft, leaning hard on Republican Senators who would otherwise have voted to confirm, engineered a 54-45 party-line vote on Oct. 5, 1999, to reject White’s nomination. Worse, Ashcroft claimed on the Senate floor that Judge White had "a serious bias against … the death penalty"; that he was "pro-criminal and activist, [and would] push law in a pro-criminal direction"; and that he had "a tremendous bent toward criminal activity." The first statement was a wild exaggeration. The second was a demagogic distortion. The third was a malicious smear.
Ashcroft is not the man to head the Justice Department. The job is vested with such vast authority over the lives of people great and small, and such symbolic importance, that the minimum qualifications should include honesty, fair-mindedness, and judicious self-restraint in the exercise of power. Every new President is entitled to Senate deference in choosing his Cabinet, even when the nominee’s policy views draw bitter liberal or conservative opposition. (Linda Chavez might have become a distinguished Labor Secretary but for her sad mistake of failing to tell Bush vetters up front what they needed to know about her illegal-immigrant issue.) But no President is entitled to put a character assassin in charge of law enforcement.
All this would be true even if Judge White were white, if Ashcroft had not expressed such fondness for the Confederacy, if race were not an issue, and if Ashcroft were in tune with the Bush pledge to be a uniter, not a divider. But White is black. The racial context makes Ashcroft’s orchestration of a floor vote against a judicial nominee, the first since 1987 (when Robert H. Bork’s Supreme Court nomination went down), all the more deplorable. And Ashcroft’s confrontational advocacy of absolutist views makes him a divider, not a uniter.
This is not to endorse the unfounded and tiresomely irresponsible suggestions by some liberal critics that Ashcroft’s attacks on Judge White were motivated by racial bias or hostility to antidiscrimination laws. Nor is it to join the claque who would fight any conservative nominee for Justice as racially insensitive and divisive. But it does appear that Ashcroft was deliberately engaging in inflammatory racial politics-in part to boost his own 2000 re-election prospects by hanging the "pro-criminal" label both on Judge White and on then-Gov. Mel Carnahan, who had appointed White and was gunning for Ashcroft’s Senate seat. Ashcroft must have known that accusing a black judge (falsely) of being "pro-criminal" and of "a tremendous bent toward criminal activity" would stir the worst instincts of those voters who stereotype criminality as black.
One result of Ashcroft’s reckless roiling of racial tensions is that he would have especially low credibility with the vast majority of African-Americans, including moderates and conservatives who eschew the race-baiting rhetoric of victimologists such as the Rev. Jesse Jackson. Indeed, people who hope to see the Justice Department move away from its long-standing advocacy of race-based affirmative action preferences (as I do) should wonder: Can John Ashcroft be a credible advocate of making the law more colorblind? I doubt it.
Deceptive rhetoric aside, is Ronnie White soft on crime? Not unless one equates measured concern for civil liberties with softness. According to Justice Department numbers, White, as of October 1999, had voted to uphold 41 (almost 70 percent) of the 59 death sentences he had reviewed. He voted to reverse the other 18, including 10 that were unanimously reversed and just three in which he was the only dissenter. (Some say that White reviewed 61 death sentences and voted to reverse 20.) His rate of affirmance was only marginally lower than the 75 percent to 81 percent averages of the five current Missouri Supreme Court judges whom Ashcroft himself appointed when he was governor
Ashcroft stressed that Judge White had dissented from decisions affirming death sentences four times as often as any Ashcroft-appointed colleague. True. But does this suggest that White would "push law in a pro-criminal direction," as Ashcroft said-or that Ashcroft appointees were rubber-stamping unfair trials?
The two dissents most directly assailed by Ashcroft in fact exude moderation and care in dealing with the tension between crime-fighting and civil liberties. In a 1998 decision, the majority upheld the murder convictions and death sentence of a previously law-abiding Vietnam veteran named James Johnson, who had suddenly turned violent. He stalked and killed a sheriff, two deputies, and another sheriff’s wife in a horrifying succession of shootings that erupted out of a domestic dispute. The only defense was insanity. The immediate issue was whether Johnson should get a new trial, after which he would either go back to death row or be locked up in a mental hospital.
If Johnson "was in control of his faculties when he went on this murderous rampage," Judge White wrote, "then he assuredly deserves the death sentence he was given." But the jury’s consideration of the insanity defense had been skewed by an egregious blunder. Johnson’s court-appointed attorney had begun by stressing that a rope-and-tin-can "perimeter" around Johnson’s garage was evidence that he had been under a delusion that he was back in Vietnam, at war. This was a gift to the prosecution, which blew the back-in-Vietnam strategy to bits by showing that the police had set up the perimeter.
Both Judge White and his colleagues faulted the defense attorney (for inadequate investigation) as well as the prosecution (for leaving the defense attorney with a false impression of the facts). They differed only on whether there was a "reasonable probability" that the jury might otherwise have found Johnson insane. The majority said no. Judge White said yes. His conclusion was plausible, debatable, highly unpopular (especially among police), and (for that reason) courageous. For Ashcroft to call it "pro-criminal" was obscene.
In the second case, one Brian Kinder was sentenced to die for a heinous rape-murder. Judge White’s "only basis" for voting to give Kinder a new trial, Ashcroft claimed, was that the trial judge had said he was "opposed to affirmative action." False. In fact, Judge White’s dissent termed that comment (made in a campaign press release) "irrelevant to the issue of bias." Instead he stressed another, "indefensibly racist" assertion in which the trial judge had contrasted "minorities" with "hard-working taxpayers." This cast grave doubt on the impartiality of a judge who was to try a black man for murder in just six days, Judge White concluded. His dissent was far more candid and convincing than the majority opinion.
Pro-criminal? Some police groups, including 77 of Missouri’s 114 sheriffs, criticized Judge White’s record. But other law enforcement officials praised him as a good judge and "an upright, fine individual," in the words of Carl Wolf, president of the Missouri Police Chiefs Association.
The smearing of Judge White makes the many testimonials to Ashcroft’s integrity ring a bit hollow. But quite apart from that episode, it was most unwise for President-elect Bush to choose Ashcroft for Attorney General. The reason is that Ashcroft is an uncompromising absolutist with a bellicose approach to issues ranging from gay rights and gun control to abortion (which would be a crime, if Ashcroft had his way, even in cases of rape and incest). He is also dead wrong (in my view) on major issues, including his aggressive push to cram even more nonviolent, small-time offenders who pose no threat to society into our prison-industrial complex, which has already mushroomed to 2 million inmates.
What would I be saying if it were President-elect Al Gore trying to put the Justice Department under (say) Sen. Edward Kennedy, D-Mass.-who smeared another judicial nominee (in 1987) by saying: "Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids … "
I would be saying that a character assassin should not be Attorney General. How about you?