Much to be learned from Ashcroft battle

As I write this column, Senate Democrats have gained a delay in the confirmation proceedings of Sen. John Ashcroft. Unfortunately, however, most still appear likely to join Republicans in confirming him. Close ties to a former colleague and/or flawed notions of bipartisanship still seem to deter too many Senate Democrats from defense of broad political principles.

Some pundits argue that absent extraordinary personal failings, Cabinet nominees should be routinely confirmed. An elected president deserves his own team to advance the agenda of his campaign. Both Congress and the judiciary stand as ultimate checks and balances. Congress makes laws, oversees departments and sets appropriations for specific programs. The federal courts curb abuses of administrative power.

Yet ours is not a parliamentary government where the prime minister simply names Cabinet officers from among the sitting MPs. The Constitution requires that the Senate give its advice and consent. Advice and consent is more vital now than at the founding of the Republic. Throughout much of the last century, Congress has abrogated both to Cabinet members and to the various administrative agencies extensive rule making authority. Agencies and departments not only administer vast budgets and programs, they shape the contours of these programs through the rule making authority bequeathed them.

As the nation’s top law enforcement officer, the attorney general must inevitably exercise extraordinary discretion on a daily basis. The modern criminal justice code is vast. Like prosecutors at all levels of government, attorneys general cannot pursue every area of lawlessness. Even if Ashcroft honors his pledge not to disregard settled law or even work actively to overturn Roe vs. Wade, his promises may matter little. Feminist groups properly ask if he will enforce laws against disruption of women’s health clinics, given his oft- stated convictions on abortion. Civil rights organizations wonder if a leader who honored the Southern defense of slavery will fairly enforce voting rights acts.

As chairman of the Senate Judiciary subcommittee on constitutional rights, Ashcroft concentrated on such themes as the right to gun ownership, punishment for burning the flag, and reversing the Miranda decision. Ashcroft’s advocates defend him as a man of integrity who understands the distinction between Senatorial advocacy and the nation’s top law enforcement position. They believe that as steward of the Justice Department he will adopt a more catholic stance.

Oversight hearings could expose misfeasance or malfeasance in an Ashcroft Justice Department. In addition, under many federal laws, various citizen groups have standing to sue should the Justice Department shirk its responsibilities.

Yet combating inaction in various areas of the law through oversight hearings is a difficult process and one that could be blocked by Republican congressional leaders. Furthermore, relying on citizen initiative to advance adequate environmental or economic regulation places an inordinate burden on those who are often already disadvantaged within the legal process.

The reticence of many Democratic senators to get out in front of efforts to block Ashcroft’s confirmation is hard to defend. Conservative Republicans have long recognized that the confirmation process is inherently and appropriately political. E.J. Dionne reminded readers in a recent Washington Post column of Orin Hatch’s outspoken effort to block Bill Lann Lee’s nomination as assistant attorney general. Hatch’s words could well be echoed in Ashcroft’s case: “Good intentions should not be sufficient to earn the consent of this body. Those charged with enforcing the nation’s laws must demonstrate a proper understanding of that law and a determination to uphold its letter and its spirit.”

In a similar vein, Arizona Republican Jon Kyl remarked: “It would be an interesting proposition to put people in office first and then see how they do, and then have a vote to confirm them. That’s not the way we do it in the United States government.”

Kyl and Hatch implicitly acknowledge the lessons of the twentieth century. Oversight after the fact barely limits the immense power now lodged in these administrative positions. Republicans have been able to make confirmation of presidential appointees an important exercise not only in spreading their views but also in changing the course of government.

Democrats have an equal right to insist that their views be heard and that a more centrist nominee be chosen. If Democrats had mobilized on this nomination, they might have swayed such moderates Republicans as Maine’s senators, who could have taken this vote as an opportunity to re-affirm their own independence.

Democrats can go only so far in blaming the future course of our politics on George Bush. A Senate filibuster supported by 41 members could derail any presidential nominee. Democrats are likely to remain a minority party until they make their principles part of ongoing discussions not only of policy but of administration appointments as well.

John Buell is a political economist who lives in Southwest Harbor. Readers wishing to contact him may e-mail messages to jbuell@acadia.net.