This week’s confirmation hearings on John Ashcroft’s nomination for attorney general makes for high political theater. A prodigious syndicate of opposition is chasing the unlikely miracle of an outright Senate rejection, but is perhaps hoping more pragmatically that relentless negative publicity will persuade George W. Bush to back off the nomination. Bush allies counter that W. won the election, which brings license to name department heads who share his convictions. The cornerstone question: Does the “advise and consent” clause of the U.S. Constitution mean that an (ostensibly) elected president has the right to expect the Senate to accept his cabinet choices as long as they meet some basic standard of qualification and ethical rectitude?
The answer from history is indistinct. The last two centuries have seen markedly consistent Senate servility in the confirmation process. Only nine presidential cabinet nominees out of more than 700 such appointments have been rejected, and only three since the 19th century. (Compare that with Supreme Court appointments, where the Senate has spurned 27 of 148 nominations.) When the Senate said no in 1989 to papa Bush’s choice of John Tower for defense secretary, it was the first and only time an appointment to a new president’s initial cabinet was rebuffed. And for Tower, the issue was booze, not policy or ideology. So if history is the benchmark, Ashcroft (and the other highly charged cabinet nominee, Gail Norton for interior secretary) probably will weather the partisan turbulence unless some licentious revelation emerges.
But it doesn’t follow that Senate Democrats need simply roll over before a controversial cabinet appointment. Given Bush’s non-mandate in a close election and a deeply divided Congress, there is no real reason other than “tradition”—all too often a convenient euphemism for what is really just a nasty habit—why Democrats cannot and should not tell the new president that an offensive nomination for attorney general is simply unacceptable.
But how, in practice, can Democrats reject the Ashcroft nomination? First, they ought to summon Republican standards for cabinet confirmation as a strategic opener. At the start of Bill Clinton’s second term, at a Senate hearing on his choice of a new transportation secretary, Commerce Committee Chair John McCain defined the task as examining “[the nominee’s] qualifications and fitness to head the department, his goals and priorities as secretary, and his plans to ensure that the department serves the public interest efficiently, effectively, and in accordance with the highest standards of professional conduct.” In other words, according to a respected Republican leader in Congress, an appointee’s priorities and connection to the public interest are appropriately in play during a confirmation fight.
Ashcroft opponents must then focus on the aspects of his record that speak clearly to these issues of policy priorities and public interest—not in the abstract, but specifically with respect to holding the office of attorney general. The difficulty here is that Ashcroft’s lengthy résumé of discourse and advocacy offers such a comprehensive stew of conservative extremism that critics find it hard to resist. The man can be shown (and has been on Web sites that exhaustively chronicle his mischief) to oppose hate crimes statutes, funding for the arts, reproductive choice, the separation of church and state, funding for AIDS treatment and prevention, school desegregation, equal rights for gays and lesbians, and affirmative action, to name a few. But alas, even had Bush chosen someone more moderate, we probably still would have a new attorney general who is anti-choice, pro-gun, anti-affirmative action, and weak on environmental protection and civil rights.
Senate Democrats have to zero in on the things that make the Ashcroft nomination palpably unacceptable, as opposed to just ideologically detestable. A laundry list of his conservative bona fides doesn’t do that. Democrats must say to Bush: We can have an anti-choice attorney general, but not one whose extreme views potentially would criminalize contraception; we can have someone who opposed the bill in Congress to extend discrimination protection to sexual orientation, but not someone who believes homosexuality is purely a choice, a lifestyle, and a sin; we can have an attorney general who dislikes affirmative action, but not one who would publicly distort the record of an African-American jurist to keep him off the federal bench, cheerfully accept an honorary degree from a university whose claim to fame is racial discrimination, and praise a neo-Confederate magazine that has described David Duke as “a Populist spokesperson for a recapturing of the American ideal” and has labeled feminism as a “revolt against god.”
The Ashcroft nomination will not come apart unless his opponents are able to separate the chaff of his sweeping conservatism from the wheat of his nasty parochialism on matters directly related to the attorney general’s portfolio. It will not unravel unless Democrats are willing to say to Bush: You have the right to an attorney general who shares your convictions, but not to one whose words and deeds betray faithlessness to bedrock principles of civil rights and social justice that define the mission of the Justice Department. And absent the majority needed to reject the nomination, Senate Democrats have to be willing to go to the mat with a filibuster to take Ashcroft down.
But I’m not holding my breath.
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