The Role of the Attorney General and Why History Will Repeat Itself

Many people think the role of Attorney General is simply to be the nation's "top cop," the chief criminal law enforcer. But it is much more. The role of the Attorney General is to serve as America's lawyer, in civil as well as criminal matters. He is not the President's lawyer. He is our lawyer.

It is critical that the Senate evaluate the past record of a nominee for Attorney General in its "advise and consent" role. While Senators prefer to give deference to a President's choice in cabinet positions, they cannot merely serve as a rubber stamp.

John Ashcroft was the most controversial nominee for Attorney General ever. All but one Democrat on the Senate Judiciary Committee (Russ Feingold, of all people) voted against Ashcroft. Their arguments are worth re-reading for a sense of to expect when Alberto Gonzales faces the same test.

Here are some selected quotes I've put together from the 59-page FDCH transcript of the Senate Judiciary committee hearing held on January 30, 2001, at which the vote was 10 to 8 to send Ashcroft's nomination on to the full Senate (transcript available at Lexis.com,) followed by some thoughts as to what likely will happen with Alberto Gonzales:

Sen. Patrick Leahy:

You appoint the top law enforcement officer, this is where you should start bringing people together. Remember, the attorney general is not the president's counsel; he has a counsel for that. The attorney general is there for every one of us, Democrats, Republicans, rich, poor, white, black, no matter who you are. So the Senate can mend the divisions we see in this country only if we follow our constitutional responsibilities.

...the attorney general is the most important person in the Cabinet, because unlike other members of the Cabinet, this is somebody who represents all of us, not there just to represent administration policy. You should have evenhanded law enforcement, protection of our basic constitutional rights, including the freedom of speech, the right to privacy, a woman's right to choose, freedom from government oppression, and equal protection of the laws.

...Can you think of any position in our government that can affect us in more ways -- everybody in this room, everybody outside, all 280 million Americans -- anything that affects us more than that of attorney general? No position in the Cabinet is more vulnerable to politicization by one who puts ideology and politics above the law.

We have, as I said, 280 million Americans, yet only 100 of us get a chance to vote on this nomination, only 100 of us. ...I believe very strongly in giving a lot of credibility and a lot of flexibility to the president of the United States. But to me advise and consent does not advise and rubber-stamp, and I'm not going to do that here.

[Leahy on Ashcroft's confirmation hearing testimony]

In those hearings, the nominee engaged in a remarkable revisionist remaking of his record. The relentless opponent of voluntary desegregation in St. Louis said he was now committed to the cause of equal opportunity for all Americans. The supporter of Southern Partisan Magazine and the recipient of an honorary degree from Bob Jones University said he was now an advocate of inclusiveness and tolerance. The past architect of an intensive legal strategy to dismantle Roe v. Wade became the defender and protector of a woman's right to choice. The outspoken advocate of unfettered Second Amendment rights said he was committed to enforcing the nation's gun control laws. The leading opponent of the nominations of David Satcher, Bill Lann Lee, James Hormel and Ronnie White said he opposed ideological litmus tests and the politics of personal destruction.

But actions speak louder than words. And in the case of Senator Ashcroft, his 30-year record of intense opposition on so many critical issues involving civil rights, women's rights, gun control and nominations speak volumes and demonstrate clearly and convincingly that he is the wrong person to be attorney general of the United States.

Sen. Joseph Biden

This Cabinet position is the single most unique position of any Cabinet office. For it's the only one where the nominee or the Cabinet officer has an equally strong and stronger, quite frankly, responsibility to the American people as he does to the person who nominates him.

Secretary of state does not have that problem, the secretary of defense, the secretary of commerce, et cetera. Obviously, they all must uphold the Constitution.

But the attorney general of the United States is both the president's lawyer and the people's lawyer. And I indicated almost 16 years ago, what I reiterated 16 days ago, and I reiterate now that for the office of attorney general, first, the question is whether the attorney general is willing to vigorously enforce all the laws in the Constitution, even though he might have philosophical disagreements; and then second, whether he possessed the standing and temperament that will permit the vast majority of the American people to believe that you can and will protect and enforce their individual rights.

...in my view, Senator Ashcroft has demonstrated repeatedly bad judgment, at a minimum, on matters relating to enforcement of civil rights and the attitude he has towards minorities, particularly African-Americans, an insensitivity in the extreme.

So, Mr. Chairman, I'm going to vote no. I am not happy about voting no. I don't feel good about voting no. I wish I could vote yes. I wish John had given different answers. I would vote for John in a heartbeat if he were going to be nominated for secretary of defense or secretary of commerce or secretary of energy. There his views on these issues don't matter, except in his own as a person. They don't matter from a public standpoint.

Sen. Herbert Kohl

But deference does not mean blind acceptance of the president's nominee. Not only must the president trust his attorney general, the nation must also trust him, for, after all, the attorney general is America's lawyer.

As Senator Ashcroft's record has become better known, my belief in deference has been truly tested, though not because of his conservative views. He should not be condemned nor rejected for that. Nevertheless, I believe that he will not be the people's lawyer. I believe that he will push and prod the law to conform to his own strongly held beliefs. And because I believe that his views are far out of the mainstream of American life, my vote will be no.

His record is out of the mainstream on central issues to the Department of Justice, issues like women's rights, civil rights, voting rights, gun control, as well as the nomination of judges. He has spent his entire public life devoted to reversing some of the very laws that he will be asked to administer. And there are indications that when he was responsible for enforcing Missouri's laws, he often chose to use the resources at his disposal to undermine them.

Sen. Diane Feinstein

Now, this is a very close election. We have a president who is president, who has not won the popular vote. And this is a key and critical appointment. It is going to determine, I think, how this nation goes in many different respects. This appointment has not united, it has divided. This nominee is extraordinarily controversial.

Let me just give you a couple of numbers to date. Through the end of last week, I have received 59,998 letters against this nominee, and 4,476 in favor. And these were passionate letters. This is not some objective remote figure. I mean people feel that this is the history of 200 years coming down to a given appointment. And until this morning, my office received 14,338 calls against the nomination and 7,502 for the nominee.

Sen. Charles Schumer:

Mr. Chairman, I will vote no on the nomination of John Ashcroft to be attorney general of the United States. Senator Feingold has appropriately called this nomination painful. It is painful to many in our country, it is painful to many in the Senate, and it is painful to me.

It is frustrating that during a period where we all hoped for reconciliation and healing after the elections, we received a nomination that threw salt on the country's wounds.

I believe we should give the president the benefit of the doubt on his Cabinet choices, and I have voted for many I have disagreed with on significant issues. But the deference we owe to the president's choices cannot be a blank check that would eviscerate our constitutional duty to advise and consent.

In response to many tough questions at the hearings concerning positions he had advocated in the past, Senator Ashcroft distanced himself from that past with the following mantra, "I will be law- oriented and not results-oriented." Frankly, it's an appealing argument. It's intended to draw a distinction between the role of senator as advocate for certain results and the role of attorney general as mere enforcer of the law.

But it leaves out something very basic about the role of the attorney general, and it leaves, therefore, a gaping hole in the argument in favor of his nomination. Just saying that Senator Ashcroft will enforce and respect existing law ignores the reality that the attorney general has vast power and discretion to shape legal policy in the federal judiciary unhindered by any devotion to existing law.

For example, he'll decide what cases will or will not be pursued in the Supreme Court. He will help draft new legislation and give influential commentary on proposals circulating in Congress.

He will be perhaps the most significant voice in the country when it comes to filling vacancies, particularly on our federal courts of appeal. These are enormous powers, and none of them will be hindered at all by a Senator Ashcroft's newfound devotion to existing law.

Sen. Richard Durbin:

Mr. Chairman, I speak, today, in opposition to the nomination of Senator John Ashcroft for attorney general of the United States. I will vote no because the only compass I have is what John Ashcroft has done in the past.

I cannot base my vote on what he has claimed he will do in the future when he public record is so clear and so inconsistent with his promises to this committee.

As governor, in 1986, he signed the bill that defined life as beginning at fertilization, providing a legal basis to ban some of the most common and effective methods of contraception. In 1998 and 1999, Senator Ashcroft wrote letters to Senator Ben Nighthorse Campbell, opposing a Senate amendment to require the FEHBP, the federal health insurance plan, to cover the cost of FDA-approved contraceptives, citing concerns that funding certain contraceptives was equivalent to funding abortifacients.

The attorney general, more than any other Cabinet officer, is entrusted with protecting the civil rights of Americans. We know from our history that defending those rights can often be controversial and unpopular. I find no evidence in the public career or voting record of Senator Ashcroft that he has ever risked any political capital to defend the rights of those who suffer in our society from prejudice and discrimination.

Sen. Maria Cantwell:

Senator Ashcroft's record of making inflammatory statements regarding reproductive rights and desegregation, his apparent disregard for protecting the individual liberties of all Americans, his affiliation and unwillingness to disavow extremist organizations and publications, and his penchant for supporting legislation to roll back our nation's environmental laws I find disturbing.

So what does this portend for Alberto Gonzalez? Here's my take.

There will be hearings at which he is asked questions about his past record. He will answer that he will be fair to all and not make decisions based upon his ideology. He won't have the abysmal record and ton of baggage that Ashcroft had on civil rights issues and judicial appointees.

The Senators on the Judiciary Committee will consider and acknowledge the responses they've received from their constituents. So, yes, it's important to let them know how you feel. A few of the more liberal ones, like Senators Leahy, Durbin and Kennedy, may make remarks to the effect that they are torn. Some may oppose him. But, barring some skeleton coming out of his closet, Gonzales will pass the Senate Judiciary Committee, and then the Senate. He will be our next Attorney General. Remember that Ashcroft became our Attorney General even though 42 Democrats voted against him.

Bush is saving his political capital for his first Supreme Court nomination. The Democrats in the Senate are going to save their capital, in the form of filibuster options, for that fight.

Keep in mind that Bush wants Gonzales on the Supreme Court. This is a stepping-stone job for Gonzales. And a distraction from two more important questions: Who will Bush name as Chief Justice and who will he appoint to the Supreme Court? Both positions require Senate confirmation.

The Democrats in the Senate cannot oppose every nomination Bush makes. Not if they want to have a chance of passing any of their own bills in this Republican-dominated Congress. And when it comes time for re-election, voters at home look at things like their Senator's record on bills introduced and passed.

The battle over Supreme Court Justices is more imporant than the battle over an Attorney General. If Bush nominates a 50 year-old for the Court, that Justice will serve and shape American jurisprudence for the next 30 years. An attorney general under a second term President serves for four years, at most. One is a lifetime appointment. One is a political perk.

President Bush is not a uniter. He is a divider. He will push his hardcore conservative values through at every opportunity. We can win a few battles, but we are not going to win the war during the next two years. To change things, we need to take back Congress in 2006, and if that's not possible, in 2008. Until then, we need to figure out which battles are the most important and let some of the others go.

If John Ashcroft made it through the Senate, so will Alberto Gonzales. But we can serve as watchdog. We can record any abuses during his tenure, as we did with Ashcroft. And if he's really bad, we can see that Gonzales leaves office with no credibility and no Supreme Court judgeship in his future. That would be a victory.

The 8 Senate Democrats who voted to confirm Ashcroft: John Breaux of Louisiana, Robert C. Byrd of West Virginia, Kent Conrad and Byron Dorgan of North Dakota, Christopher Dodd of Connecticut, Russ Feingold of Wisconsin, Zell Miller of Georgia and Ben Nelson of Nebraska.

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