The Case Against the Confirmation of John Ashcroft as Attorney General of the United States: PART I

Ashcroft’s extremist record on other Judicial and Executive Branch nominations.

Unfortunately, Senator Ashcroft’s opposition to the Ronnie White nomination was no exception. Ashcroft, unlike many other Senate Republicans, consistently delayed and opposed lower court nominations. Perhaps even more troubling, Ashcroft helped lead a minority of Senators to oppose Executive Branch nominations based on little more than policy disagreements with the nominees’ positions on issues such as abortion and civil rights, completely changing the traditional standards by which such nominees have been considered. And a disturbingly large proportion of the nominees opposed by Ashcroft were women or minorities.

For example, Ashcroft played a key role in delaying and trying to defeat the nomination of Margaret Morrow to serve on the federal district court in Los Angeles in 1996. Morrow was an established corporate litigator with more than 20 years of experience. She earned an overwhelming number of bipartisan endorsements for her nomination –- including that of Republican Judiciary Chairman Orrin Hatch, who sent a letter to his colleagues on her behalf. She was the first woman to head the California Bar Association, and was twice named one of Los Angeles’ top business lawyers. Nevertheless, far right interest groups and a few Senators, including Ashcroft, claimed that she was a liberal activist and unfit to serve on the bench, based on her efforts to promote pro bono legal work for the poor and on a misinterpretation of statements from her about bar association reform and ballot initiatives. Ashcroft and a few other Senators delayed a vote on her nomination for almost two years. In the end, a bipartisan majority supported her confirmation, and Ashcroft was one of 28 Senators who voted against her confirmation.

A similar pattern of delay and opposition emerged with respect to a number of other female and minority judicial nominees. Ashcroft was one of only 11 Senators to vote against the confirmation of Margaret McKeown to the Ninth Circuit Court of Appeals in 1998, after a delay of almost two years. He was one of 29 Senators to vote against Sonia Sotomayor for the Second Circuit Court of Appeals, after a delay of more than a year. After a delay in acting on the nomination of more than 2 ½ years, Ashcroft was part of a minority of 34 Senators in opposing Susan Oki Mollway for confirmation to the federal district court in Hawaii, where she became the first Asian American woman to serve on the federal bench. He was one of 30 Senators to vote against Ann Aiken to become a federal district court judge in Oregon. Ashcroft and 30 other Senators voted to postpone indefinitely a vote on the nomination of Richard Paez to the Ninth Circuit Court of Appeals, and he was among a minority of Senators who voted against both Paez and Marsha Berzon for confirmation to that court after long delays.

John Ashcroft’s opposition to the confirmation of minority nominees extended beyond the courts; he also worked with ultra conservative groups to help lead opposition to a number of Executive Branch nominations. For example, in 1998, the far right Family Research Council and Christian Coalition enlisted Senator Ashcroft’s help in an effort to defeat the confirmation of Dr. David Satcher, an African-American, as Surgeon General. Satcher’s nomination was easily approved by the Senate Labor and Human Resources Committee, and Senate Majority Leader Trent Lott announced that Satcher would probably be confirmed in early 1998. Nevertheless, Ashcroft took the lead in opposing Dr. Satcher, based largely on Dr. Satcher’s support for reproductive choice. As in the case of Ronnie White, Ashcroft used extremely harsh language on the Senate floor to criticize Dr. Satcher, calling him "someone who is indifferent to infanticide." 144 Cong. Rec. S540 (daily ed. Feb. 10, 1998) (statement of Sen. Ashcroft).

As in Committee, Dr. Satcher had the support of a number of Republican Senators, including Fred Thompson and Bill Frist, himself a physician. Senator Frist, like Senator Ashcroft, disagreed with Dr. Satcher on the issue of so-called "partial birth" abortion. Unlike Ashcroft, however, Frist and other Republicans were satisfied with Dr. Satcher’s pledge that he would not use his official position to promote his views on abortion. Ashcroft persisted in his opposition, and joined less than a quarter of the Senate (23 Senators) in taking the extremely rare step of opposing cloture, thus seeking to delay indefinitely even a Senate vote on the nomination. Dr. Satcher was confirmed by almost two-thirds of the Senate on February 9, 1998, with Ashcroft as part of a 35-vote minority opposed to confirmation.

The Satcher nomination was only one example of Ashcroft's opposition to minority Executive Branch nominees. In 1995, he helped block the nomination of Dr. Henry Foster to become Surgeon General, also over the issue of abortion. A majority of 57 Senators supported the Foster nomination, but Ashcroft and others demanded a cloture vote, allowing a minority of the Senate to kill the nomination. Ashcroft also helped lead opposition to the confirmation of Bill Lann Lee as Assistant Attorney General for Civil Rights, helping block a vote by the full Senate. No one suggested that Lee lacked integrity or was not qualified; disagreement with Lee on the issue of affirmative action was enough to prevent a Senate vote.

Ashcroft was also a leader in blocking the confirmation of James Hormel to be Ambassador to Luxembourg. Time wrote that as a businessman, philanthropist, and law school dean, Hormel was "standard ambassadorial material," but was opposed simply because he is "gay and a prominent advocate of gay rights." Time (May 11, 1998). Only Ashcroft and Senator Jesse Helms voted against Hormel in a 16-2 vote in his favor in the Senate Foreign Relations Committee. That minority of two was able to block a vote on the Senate floor as a result of Helms’ position as Committee chair.

As one commentator has recently written, Ashcroft "used the forum of Senate confirmation hearings to act out his political dark side, savaging presidential nominees," particularly minorities, and standing out "among his peers as a conservative attack dog." St. Louis Riverfront Times (Dec. 27, 2000). In fact, if the standard used by Senator Ashcroft in attacking other Executive Branch nominees were applied to him, many Republican as well as Democratic Senators would oppose him. While People For the American Way believes that policy disagreements alone would generally not be a sufficient basis for opposing an Executive Branch nominee, Senator Ashcroft’s extreme record with respect to nominations is another key aspect of his far right record in the Senate that bears directly on his fitness to serve as Attorney General. Ashcroft’s record on nominations is particularly troubling for a nominee for Attorney General, an official whose critical responsibilities include helping to screen and select nominees to the federal courts.

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