John Ashcroft's First Six Months at the Justice Department: The Right Wing Dream Team Takes Over

A report by People For the American Way Foundation

Table of Contents

Introduction

When President-elect George W. Bush announced that former U.S. Senator John Ashcroft would be his nominee for U.S. Attorney General, People For the American Way helped lead a coalition of extraordinary breadth and depth opposing his confirmation. Based on Ashcroft's record as a senator and as Missouri state attorney general and governor, public interest advocates believed that Ashcroft was a right-wing ideologue who should not be entrusted with overseeing the enforcement of laws and the protection of constitutional guarantees affecting civil rights, civil liberties, religious liberty, reproductive rights, environmental protection, and more. A copy of People For the American Way's exhaustively documented report, "The Case Against the Confirmation of John Ashcroft as Attorney General of the United States" is available.

Six months into Ashcroft's tenure, it is clear that many of the concerns raised by public interest groups and hundreds of thousands of Americans were well warranted.

The soothing rhetoric Ashcroft employed at his confirmation hearings continues, but cannot hide the continued aggressive promotion of the far-right legal and ideological agenda that has marked his career in public office. The strategy of putting a moderate face on a far-from-moderate agenda makes Ashcroft in some ways emblematic of the Bush administration writ large, which has clearly internalized the advice of Bush campaign adviser and former Christian Coalition president Ralph Reed, who has urged his fellow Religious Right activists to shun harsh language in order to achieve their goals.

At the time of Ashcroft's nomination, People For the American Way President Ralph G. Neas criticized Bush for choosing someone with a voting record to the right of Sen. Jesse Helms (according to 1997-1998 voting records analysis from the nonpartisan National Journal.) Said Neas, "On the key criterion of commitment to equal justice under the law, Ashcroft's record simply does not measure up to the standards the American people have a right to expect from the person entrusted with protecting their rights and their Constitution. John Ashcroft's record shows him to be a man who has not earned the people's high trust but has used his power and position to advance a far right agenda at the expense of Americans' fundamental rights and liberties."

Ashcroft has occasionally disappointed his allies on the far right, for example, by moving in one visible case to uphold federal law protecting clinics from anti-abortion protestors and defending a Department of Transportation affirmative action program. But there have been many more troubling actions or lack of action on a range of issues, including civil rights, civil liberties, gun control, the federal judiciary, church-state separation, and legal and constitutional interpretation. And what is already a poor record is nearly certain to get worse.

Indeed, in his first months in office, Ashcroft has assembled the radical right's Dream Team, giving Religious Right leaders and their political allies reason to believe that their all-out efforts on behalf of George W. Bush have paid off. Many of these appointees are just settling into office, so their full impact on public policy has not yet been felt.

This is particularly true about the top priority of the Bush administration and its right-wing allies - dominance of the Supreme Court and the entire federal judiciary by right-wing ideologues. Members of the Federalist Society for Law and Public Policy Studies, whose legal philosophy is represented on the current Supreme Court by Justices Antonin Scalia and Clarence Thomas, play central roles in the Justice Department and White House in the process by which federal judicial nominees are selected. It is in this arena that the Bush administration, if successful, will have the longest and most detrimental effect on American law and society, potentially overturning seven decades of social justice progress and blocking progressive initiatives for the next generation.

This report will highlight some of the appointees to important Justice Department positions, discuss the relevance of the Federalist Society affiliation of many of those nominees, consider the impact of Ashcroft and his legal team on the federal judiciary, and briefly review Department of Justice actions under Ashcroft in more than a dozen policy areas.

The Justice Department Dream Team

In addition to Ashcroft himself, who is a member of the Federalist Society (see below), many high-level political positions within the Justice Department have been filled with ideological warriors from the far right. The impact of these appointments will continue to grow as they implement the administration's agenda in the coming months and years.

Some of the key members of the team that are either in place now or nominated and awaiting confirmation are:

Solicitor General

Ted Olson, the lawyer who argued on Bush's behalf before the Supreme Court last fall, was, until April, a member of the Federalist Society's Board of Visitors and one of the nation's premier legal advocates for a variety of right-wing causes. Olson represented Reagan during the Iran-Contra hearings and is a close friend and associate of Ken Starr. During Olson's confirmation hearings, questions rose about his role in the American Spectator's anti-Clinton activities and in Olson's truthfulness in answering questions.

Deputy Attorney General

Larry Thompson, also a member of the Federalist Society, served as an adviser and witness for Supreme Court Justice Clarence Thomas during his Senate confirmation hearings. For nine years, Thompson was on the board of the Southeastern Legal Foundation, one of a network of legal organizations pushing a far-right agenda in the courts.

Assistant Attorney General for Legal Policy

Viet Dinh, a professor at Georgetown Law Center, is the point man for judicial selection in the Justice Department. Dinh, who worked on the Whitewater investigation, is also a member of the Federalist Society who has been described by a colleague as a "conservative hotshot." During the aftermath of the presidential election in Florida, Dinh was a visible commentator defending the actions of Republican party officials.

Assistant Attorney General for Environment and Natural Resources

Thomas L. Sansonetti is a Federalist Society member who has been a lobbyist for coal mining operations and other industries seeking access to public lands. He served in the Interior Department under Secretary Don Hodel (former president of the Christian Coalition) and as Legislative Director for then Congressman Craig Thomas, R-Wyo., now a U.S. Senator. He is still listed as a member of the Defenders of Property Rights Lawyers Network.

Principal Deputy Solicitor General

Paul Clement is a Federalist Society member and former chief counsel for the Senate Subcommittee on the Constitution, Federalism and Property Rights chaired by then-Senator Ashcroft.

Associate Deputy Attorney General

R. Ted Cruz is an attorney who assisted in preparing the briefs for then-Gov. George W. Bush before the U.S. Supreme Court and the Florida Supreme Court. He was a domestic policy advisor to the Bush-Cheney campaign, and served as a law clerk to Chief Justice William H. Rehnquist. Cruz is a member of the Federalist Society.

Administrator, Office of Juvenile Justice and Delinquency Prevention

J. Robert Flores was the vice president and senior counsel for the National Law Center for Children and Families, a lobbying group that strongly supported Child Online Protection Act (COPA), an Internet censorship bill that has since been overturned in federal court and is now before the Supreme Court. Flores worked in the Justice Department under the first Bush administration and the Clinton administration, from 1989 to 1997, serving in the Justice Department's Child Exploitation and Obscenity Section of the Criminal Division. In 1997, Flores joined former Attorney General Edwin Meese and eleven right-wing "pro-family" groups to protest what they claim was a drop in obscenity prosecutions under President Clinton.

This summary does not include many Federalist Society lawyers and right-wing activists who are taking over important policymaking positions below the sub-cabinet level.

The Federalist Society and Its Impact

The predominance of Federalist Society members and activists in the Justice Department, the White House, and throughout the Bush administration is relevant because this increasingly influential organization is providing much of the legal and intellectual firepower for the far right's efforts to transform American law and society through the courts.

There is nothing illegal or unethical about an administration being so heavily staffed and influenced by individuals who are affiliated with a single organization. However, the American people deserve to be fully informed about any organization that has assumed such a central role in shaping policy and determining appointees for the administration.

Despite its protestations that it is little more than a debating society, media from across the political spectrum agree that the organization carries tremendous clout. The Washington Times' Insight magazine identified the group as the "single most influential organization in the conservative legal world." An article in Washington Monthly identified the Society as "quite simply the best-organized, best-funded, and most effective legal network operating in this country." Grover Norquist, among the nation's most influential right-wing political strategists, confirmed the group's influence when he said, "If Hillary Clinton had wanted to put some meat on her charge of a 'vast right-wing conspiracy,' she should have had a list of Federalist Society members and she could have spun a more convincing story."

Through a network of right-wing lawyers, government officials, scholars and judges, the Society seeks to fundamentally remake the American legal system. Earlier this year, the organization sponsored a conference called "Rolling Back the New Deal." The leading voices of the Society share an ideology that is hostile to civil rights, reproductive rights, religious liberties, environmental protection, privacy rights, and health and safety standards, and would strip the federal government of the power to enforce these rights and protections. And they are poised to succeed.

When President George W. Bush took office, many pundits predicted that his narrow margin of victory, his loss of the popular vote, and his moderate-sounding campaign would lead him to govern from the political center. Yet Bush began almost immediately to confound this prediction with a series of actions - especially in the areas of family planning, the environment, and nominations - that seemed to have been taken directly from the right wing's playbook. Right-wing groups lauded President Bush's efforts to assemble a team that one ultra-conservative leader described as "more Reaganite than the Reagan administration."

Early predictions of moderation proved wrong largely because observers failed to take into account a very important factor: President Bush's reliance for policy and staffing decisions on members of right-wing organizations, notably the Federalist Society. When President Bush broke his campaign promise to regulate carbon dioxide emissions, that decision was based on a controversial report requested by one of the Society's founding members. When right-wing leaders attacked the potential nomination of conservative Montana Governor Marc Racicot to be attorney general, it was a leading Federalist Society activist who wrote the memorandum that proved critical in torpedoing Racicot's hopes. In the end, the post went instead to Ashcroft, another Society member.

For a more in-depth examination of the Federalist Society, see People For the American Way Foundation's report, The Federalist Society: from Obscurity to Power . The Institute for Judiciary Studies, 212-423-9237, has also published an analysis of the Federalist Society.

The Judiciary

Through the Justice Department's role in recommending nominees to the federal courts, the Attorney General plays a critical role in deciding what kind of judges will preside over the federal judiciary. The screening and selection process carried out in the Justice Department and the White House legal counsel's office determines whether the nominees who come before the Senate for confirmation are fair-minded individuals committed to equal justice or are ideologues chosen to advance a specific social and legal agenda.

The far-right team that John Ashcroft has put in place at the Justice Department, and the similar ideological bent of the White House legal counsel's office, make it clear that many rights and freedoms Americans take for granted are in jeopardy. Unless the U.S. Senate acts to prevent the enshrining of John Ashcroft's legal philosophy on the U.S. Supreme Court and throughout the federal judiciary, many fundamental civil rights and civil liberties could be eliminated. In fact, progressive values could be shut out of federal policy for the next half-century, much as the Supreme Court in the first third of the 20th Century overturned progressive legislation, from child labor laws to the first elements of the New Deal.

As a presidential candidate, George W. Bush appealed to the far right of his party with a pledge to appoint Supreme Court justices in the mold of Antonin Scalia and Clarence Thomas. The administration signaled its intentions to infuse the entire judiciary with a right wing legal philosophy when Attorney General John Ashcroft and White House Counsel Alberto Gonzales held a press conference to announce that the administration had ended the role of the American Bar Association (ABA) in the process of evaluating potential judicial nominees. Since the Eisenhower administration, the ABA had served as a quasi-official consultant to the president on judicial nominations. Nominees were rated after a review that typically included not only a thorough look at a nominee's work, but also extensive interviews across a broad cross section of the legal profession itself, including the nominee's professional peers, the bench, and the law schools. But no longer.

Today, many of those with direct responsibility for selecting judicial nominees in both the Justice Department and the White House, are members of the Federalist Society. In the Justice Department they include Ashcroft and Assistant Attorney General Viet Dinh, and in the White House, Deputy Counsel Tim Flanigan and Associate White House Counsel Brett Kavanaugh. According to press accounts, the lawyers who serve on the judicial screening committee, "typically have collected similar credentials for entry in that elite group; most have been law clerks for conservative judges and Supreme Court justices and are members of the Federalist Society." According to one report, moreover, 12 to 20 of the first set of candidates interviewed for judgeships by the administration's team "were directly recommended by the Federalist Society's Washington headquarters." And indeed, six of President Bush's first 11 nominees to the federal court of appeals have been members of the Federalist Society.

That impact of this administration's nominees could easily extend for the next 30 or 40 years. It is very likely that President Bush will have the opportunity to name more than one Supreme Court justice. Indeed, it has now been seven years since the appointment of Justice Breyer, the longest interval between nominations since the administration of James Monroe nearly 180 years ago.

The Supreme Court is closely divided on a range of fundamental issues. A Supreme Court dominated by the far right, with just one or two new justices in the mold of Scalia or Thomas, would curtail or abolish many rights and freedoms that millions of Americans take for granted. The Court's right-wing justices are eager, of course, to outlaw abortion under any circumstances by overturning Roe v. Wade - and they only need one or two more votes. They have also called for dramatically curtailing the protections afforded minority voters by the Voting Rights Act and by other civil rights laws, as well as for reversal of precedents that protect Americans from discrimination based on sex, age, disability and sexual orientation. A far-right Court would sharply curtail workers' rights, environmental protection and religious liberty, and would make campaign finance reform and gun control virtually impossible. In short, a Scalia-Thomas Court majority could overturn more than 100 Supreme Court precedents that have been embraced by conservative, moderate, and liberal justices alike. For an in-depth analysis of the consequences of additional right-wing Supreme Court justices, see People For the American Way Foundation's "Courting Disaster."

And all of that is on top of the disturbing series of states' rights rulings that the current conservative majority has already used to restrict the federal government's ability to protect citizens' rights from abuse at the state level.

Far more than the Supreme Court is at stake, however. Long before George W. Bush was even a candidate for the presidency, the far right set the stage for the attempted takeover of the federal courts, particularly the U.S. courts of appeal. Ultraconservatives in the Senate leadership waged an unprecedented ideological stalling campaign against well-qualified Clinton administration nominees, constructing a virtual blockade of judicial nominations. From 1995 to 2001, 35 percent of Clinton's appeals court nominees were stopped. This blockade was only briefly and partially lifted even when Chief Justice William Rehnquist chastised Senators for refusing to vote up or down on nominations and allow many vacancies to be filled.

Ashcroft himself was among a group of far-right Senators who repeatedly delayed and opposed well-qualified Clinton nominees to the federal bench. Most notoriously, Ashcroft led a scorched-earth campaign against the confirmation of Missouri Supreme Court Judge Ronnie White to a federal judgeship, delaying a vote on his nomination for several years and then relying on demonstrably false charges that were never raised at Judge White's hearing to torpedo the nomination.

Even White House Counsel Alberto Gonzalez has acknowledged that "the conduct of the Republican senators" regarding Clinton's judicial nominees "was wrong." But right-wing obstructionism paid off with a large number of vacancies awaiting President George W. Bush when he took office; there are currently more than 100 vacancies on the lower federal courts, including more than 30 vacancies on the circuit courts of appeals. Currently, judges appointed by Republican presidents control eight of the 13 circuit courts of appeals. If George W. Bush succeeds in filling all the current vacancies, Republican nominees will control 11 of the 13, and it is expected that within the next four years, every one of the nation's federal appeals courts could be controlled by Republican nominees. And the Bush administration's first nominations are, with few exceptions, the kind of staunch conservatives that the Federalist Society hopes to see dominating the federal bench, many of whom are willing to defy Supreme Court precedent.

People For the American Way has urged senators to carefully examine each nominee's record, a more likely prospect after Sen. James Jeffords left the Republican Party and Sen. Orrin Hatch lost his chairmanship of the Judiciary Committee, where he was preparing a system to speed nominees through with little scrutiny.

Right-wing leaders who specialized in preventing Clinton nominees from even getting a hearing are now calling for quick action on the administration's nominees. In an act of astonishing hypocrisy, Attorney General Ashcroft told attendees at this summer's ABA conference, "I know I don't need to tell you that judicial vacancies mean delays in the time it takes to have one's case heard. Justice delayed is justice denied."

Department of Justice Action and Inaction

While the Attorney General's crucial role in the process of judicial selection provides the greatest opportunity to undermine constitutional rights and liberties in the long run, he can also do significant damage through his decisions about how to interpret the law and the Constitution, about his choice of priorities for federal law enforcement, and by the arguments he chooses to make or not make on behalf of the Justice Department in federal court. Although the Ashcroft team at the Justice Department is just getting started, it has already begun seriously troubling initiatives in a number of areas.

Second Amendment and Gun Violence

In May, Ashcroft sent a letter to the National Rifle Association stating his belief that the Second Amendment to the Constitution protects individuals' right to own guns. This statement is a radical departure from federal courts' interpretation of the Second Amendment and long-held Department of Justice policy supporting a traditional understanding that the Second Amendment confers a collective right to own guns through militias, not an absolute individual right.

Ashcroft's proclamation opens the door to widespread litigation against gun control laws around the country. The letter is already a factor in the case of a Texas man charged with illegally possessing a gun after he was subject to a restraining order in a divorce dissolution proceeding; a federal judge threw out charges. Common Cause and the Brady Center to Prevent Handgun Violence have asked that the Justice Department's inspector general and the DC Court of Appeals' Board of Professional Responsibility open investigations into Ashcroft's letter, which they believe undermines the U.S. position in the Texas case.

In late June, Ashcroft dismayed many local law enforcement officials by announcing that he would require the FBI to "protect the privacy" of gun dealers and buyers by erasing records of firearms transactions within 24 hours of purchase, a move some gun control advocates called "a death certificate for the Brady law." According to the Violence Policy Center, Ashcroft's announcement was a 180-degree shift in DOJ policy; in the same month, DOJ lawyers had filed a brief before the U.S. Supreme Court opposing immediate destruction of the records, and the Court had given the DOJ clear authority to retain those records. Violence Policy Center Litigation Director and Legislative Counsel Mathew Nosanchuk said Ashcroft's policy reversal "proves that the NRA is not only operating out of the White House, but running the Justice Department. It's no coincidence that NRA Life Member Ashcroft is currently featured on the cover of the NRA's America's 1st Freedom magazine."

Tobacco Litigation

The federal investigation and lawsuit against tobacco companies may go up in smoke, as Ashcroft has refused additional funding requested to support the government's lawsuit and assembled a team of lawyers to start discussions about ending the lawsuit by settling out of court. Ashcroft's actions moved Wall Street Journal columnist Al Hunt to write "tobacco has never had a better friend in the attorney general's chair than John Ashcroft."

In August, Thomas Novotny, who led the U.S. delegation to the World Health Organization's Framework Convention on Tobacco Control during the Clinton and Bush administrations, resigned. He reportedly was frustrated with the current administration's softened stand on some issues, such as restrictions on secondhand smoke and the advertising and marketing of cigarettes.

Civil Liberties

Religious Liberty and Separation of Church and State

The Bush administration reflects the hostility of the Religious Right for the constitutional separation of church and state, one of the First Amendment's pillars of religious liberty, and for the application of the principle of government neutrality toward religion in federal policy. The administration is aggressively promoting plans to divert billions of taxpayer dollars in social service spending to pervasively religious organizations, and has supported legislation passed by the House of Representatives that would endorse government-funded discrimination. Before passage of that legislation, House Judiciary Committee Chairman James Sensenbrenner (R-WI) had expressed concerns over the constitutionality of the proposed measure. Attorney General Ashcroft, himself the author of the limited "charitable choice" provision in the 1996 welfare reform bill as well as even more extensive legislation pushing that concept, contacted the legislator to try to convince him to support the Bush plan. Ashcroft was followed by Solicitor General Ted Olson who met with Sensenbrenner for two hours to convince him to change his mind. As Attorney General, Ashcroft will also play a crucial role in anticipated administration regulatory proposals to authorize more government social service funds to go to pervasively religious groups.

In July, in a case with potentially far-reaching implications for religious liberty and church-state separation, Solicitor General Ted Olson took the unusual step of asking the Supreme Court to take up the Ohio school voucher case. Lower courts have ruled that the program's publicly funded vouchers predominantly benefit religious schools and violate the establishment clause of the First Amendment. Olson's brief asked the justices to uphold Cleveland's voucher program, and was seen by Court observers as a way for the administration to send a signal to the Court about the importance of the issue to the administration. Religious Right organizations and their political allies hope that the Supreme Court will use the voucher case to radically alter its interpretation of the First Amendment and open the door to a wide range of government funding for religious institutions.

At the Justice Department, Ashcroft has raised concerns among professional staff by leading daily sessions of prayer and Bible Study. Federal government guidelines on religious exercise and religious expression in the workplace urge supervisors to exercise particular care that employees not perceive any coercion, whether intended or not, to participate in such gatherings. Ashcroft's example could encourage other supervisors to hold religious gatherings that employees may feel compelled to attend.

Reproductive Freedom

As Attorney General, Ashcroft, an avowed opponent of women's reproductive freedom, has responsibility for enforcing the Freedom of Access to Clinic Entrances Act (FACE), reviewing pending Congressional legislation dealing with women's health, and coordinating the Task Force on Violence Against Health Care Providers. Ashcroft had said he would dismantle the Task Force but backed down from that promise during his confirmation hearings. The Task Force continues but many have raised concerns about its effectiveness. Vicki Saporta of the National Abortion Federation says "It's now much harder to talk to career DOJ people; they have to get clearance just to speak with us."

The Bush administration also asked the U.S. Attorney responsible for the investigation of Dr. Bernard Slepian's death and the extradition of James Kopp, the alleged killer of the abortion provider, to resign. N.Y. Senator Charles Schumer (D-NY) responded by saying, "Allowing U.S. Attorneys to serve out their terms has the great benefit of reducing the role politics plays in the administration of justice."

The Justice Department reversed an earlier decision and sent U.S. deputy marshals to Wichita, Kansas to protect an abortion clinic slated to be targeted by anti-choice protesters. Justice Department officials said they would provide protection for Dr. George Tiller, a physician who was shot in 1993 outside his clinic. The announcement came as three abortion rights groups called a news conference to complain about Ashcroft's failure to provide protection during Operation Save America, formerly Operation Rescue's announced campaign targeting Tiller's clinic this summer.

Freedom of the Press

A part-time college lecturer and freelance writer has been jailed for refusing to turn over to the FBI notes and research she collected while writing a book about a Texas crime. The Justice Department has reasoned that only "legitimate" journalists or reporters can be protected by the First Amendment protections of the U.S. Constitution regarding a free press. Although the lower court's actions against the writer have been upheld, there has been significant criticism of the Ashcroft Justice Department's role in the case. Rep. Sheila Jackson Lee, D-Texas, has urged Attorney General Ashcroft to look into the matter, saying, "I believe the Justice Department has not followed its own internal guidelines." Critics include Robert Lystad, Society of Professional Journalists legal counsel. "The Justice Department appears to be harking back to the Watergate era when harassment and intimidation of journalists by high-ranking government officials was condoned," he said. "Even with fundamental constitutional liberties at stake, the Justice Department apparently will not even heed its own regulations."

In addition, in May, while serving as acting deputy attorney general, Robert S. Mueller III, authorized U.S. Attorney Mary Jo White to obtain a record of the outgoing and incoming home telephone calls of an Associated Press reporter covering the investigation of Sen. Robert G. Torricelli. Mueller is now the new head of the FBI. An outraged Louis D. Boccardi, president and CEO of Associated Press, said the Justice Department's actions "fly in the face of long-standing policy that recognizes what a serious step it is to go after a reporter's phone records. We hope that this secret assault on the press is not an indication of the Bush administration's attitude toward a press free of government interference."

Civil Rights

Voting Rights Enforcement

Widespread concern over voting irregularities across the nation following last year's election recounts in Florida prompted Ashcroft to add more additional attorneys in the voting rights section of the civil rights division. Ashcroft also announced he would create a new voting rights initiative to include a new senior counsel position within the department's civil rights division.

But Justice Department attorneys have not become involved in any of the lawsuits alleging voter disfranchisement in Florida or elsewhere other than to review changes to Florida's law as they are required to do. They have instead focused primarily on investigating charges made by Republicans of voter fraud in St. Louis, where Ashcroft sent in monitors to oversee a special election in March. In June, the U.S. Commission on Civil Rights released its report on irregularities in the Florida vote and recommended that the Justice Department investigate possible violations of the Voting Rights Act of 1965 and requested a meeting with the Attorney General. To date, that meeting hasn't occurred, though a Justice Department spokesperson has said the Department is investigating 12 claims of voting irregularities in Florida.

The Department's lack of intervention in voting rights cases has been contrasted by several observers with its decision to intervene in one of the first suits in the country brought under the recently passed Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000. The RLUIPA case is of keen interest to Religious Right groups, which were Ashcroft's most vehement supporters.

States' Rights and Related Rulings

The conservative majority on the Supreme Court has recently handed down a series of devastating 5-4 decisions that enshrine states' rights over the ability of the federal government to protect citizens against various forms of discrimination. These cases, and the potential reach of the principles behind the majority's decisions, represent one of the gravest threats to Americans' constitutional and civil rights, and could prevent the implementation of progressive policies in many arenas for an entire generation. Proposals have already been made to try to reverse some of these decisions in Congress or at least to reduce some of their adverse impact on Americans' rights. But John Ashcroft and the Justice Department have not even criticized these rulings. That silence is not surprising, since the rulings are consistent with the goal of the Federalist Society and its allies to radically restrict the federal government's ability to act on a wide range of issues.

For example, in University of Alabama v. Garrett, the Court said state employees cannot sue to recover money damages in federal court under the Americans with Disabilities Act. This ruling deprived some 5 million state employees of this important civil rights remedy.

In the case of Kimel vs. Florida Board of Regents, the Court similarly ruled that Congress exceeded its authority when it allowed federal age discrimination lawsuits for damages against the states.

In the case of Alexander v. Sandoval, the Supreme Court ruled that Title VI of the Civil Rights Act of 1964 does not provide a private right of action for discrimination based on what is known as "disparate impact." Title VI prohibits recipients of federal financial assistance from discriminating on the basis of race, color, or national origin. Disparate impact analysis, under which practices with discriminatory effects are illegal unless they can be proven justified, has been a critical tool of civil rights enforcement. The Sandoval ruling runs contrary to the rule for other civil rights laws.

All three cases were successfully argued by Jeffrey Sutton, since nominated by President Bush to a seat on the 6th U.S. Circuit Court of Appeals. Sutton, a former law clerk of Justice Antonin Scalia, is a staunch believer in states' rights and serves as an officer of the Federalist Society's Separation of Powers and Federalism Subcommittee.

Racial Profiling and Other Police Misconduct

During his confirmation hearings, some Ashcroft supporters pointed to his stated opposition to racial profiling to offset criticism of racial insensitivity that stemmed from his long record as a U.S. Senator and as Governor and Attorney General of the state of Missouri. In February, the American Civil Liberties Union applauded Ashcroft's statements calling on Congress to pass racial profiling legislation. They noted, however, that Ashcroft had failed to support similar legislation while he was in the Senate. In fact, The Nation recently reported that Ashcroft has only supported legislation calling for a study of racially motivated traffic stops if local police departments are given the choice to opt out. If this is true, it would constitute a massive loophole.

In July, the Justice Department's newly confirmed civil rights chief told the Boston Globe that the department would take an aggressive stand on racial profiling, suing local police departments that don't halt the practice. And in August, Ashcroft reportedly told law enforcement officials that racial profiling was a "profound moral wrong." Justice Department officials said the department would begin its own study of the problem even though legislation had not been passed.

Some members of Congress, however, have criticized Ashcroft for moving slowly to address the issue.

After extensive media coverage of rioting in Cincinnati following the shooting of an unarmed man, President Bush asked Ashcroft to "help calm and resolve this situation." The Justice Department has since opened an investigation into police conduct in Cincinnati, and more recently, in Prince George's County, Maryland. But in Los Angeles, the Justice Department has been slow to respond to the widespread allegations of corruption in the Rampart Division of the LA Police Department. According to a July report in The Nation, a federal district judge is still waiting for the Justice Department to respond on the choice of a monitor for the consent decree. Mark Rosenbaum of the Southern California ACLU says, "Every day that it goes unsigned it has a credibility problem, and the police culture in the LAPD becomes more entrenched."

Capital Punishment

In June, John Ashcroft told Congress that "There is no evidence of racial bias in the administration of the federal death penalty." According to CBS News, his statements contradicted a September 2000 Justice Department report, which found that minorities were considered for the federal death penalty more often than whites, accounting for 74 percent of such cases since 1995.

Discrimination Against Americans with Disabilities

In addition to supporting a judicial nominee who has argued for severely limiting the ADA, the Justice Department has filed a brief before the Supreme Court supporting Toyota, which is being sued for allegedly discriminating against a woman with a disability. The Justice Department's brief doesn't address whether the woman is disabled but raises claims that a lower court erred in the way it made its decision. Many activists, calling the step "unusual," have raised serious concerns about why the Justice Department took sides in the case and question its willingness to defend the rights of disabled people. Although the Justice Department filed an amicus brief on behalf of plaintiffs in a lawsuit against the Chicago Transit Authority in mid-April, several advocacy groups, noting the Bush administration's mixed messages on the subject, are increasing their advocacy and lobbying in an effort to protect the rights of people with disabilities.

Affirmative Action

In a move that dismayed some of its right-wing supporters, the Justice Department recently filed a brief with the Supreme Court in the case of Adarand v. Mineta, supporting the federal rule that allows the Department of Transportation to operate affirmative action programs.

Reportedly, Transportation Secretary Norman Mineta, who has long been committed to effective affirmative action measures, argued strenuously on behalf of the program challenged in Adarand. Administration officials sought to mute right-wing criticism by emphasizing the limited reach of this decision. The Wall Street Journal reported that several Justice Department officials said no sweeping pronouncements can be made about the administration's position on affirmative action based on the Adarand brief. "This is the argument for this program," one official said. "It is a narrow focus." Observers say the Justice Department is avoiding a legal fight against affirmative action until a "better" case comes to court and that the Solicitor General was legally bound to defend the Department of Transportation. In fact, it would have been an extraordinary step for the Justice Department to switch sides in a case currently before the Supreme Court. Most agree that the true test of the Justice Department's affirmative action position will come when one of the challenges to race-based university admissions programs comes before the court. Three are presently working their way through appeals. In 1996, Solicitor General Ted Olson joined with the Center for Individual Rights to litigate the landmark Hopwood decision, which banned affirmative action programs in university admissions throughout the 5th Circuit.

Another major test for the Department in this area will come in the next several weeks. The presidents of the NAACP, National Urban League, National Council of La Raza, and LULAC have recently written to Ashcroft and FCC chair Michael Powell urging them to request Supreme Court review of an appellate court decision invalidating an FCC equal opportunity rule. As the Washington Post put it, the rule represented "the most inoffensive corner of affirmative action," requiring only that broadcasters engage in outreach and other efforts to "try to get minorities and women into their applicant pools," but was nevertheless struck down by a divided D.C. Circuit Court of Appeals.

Although civil rights groups participating in the case have already announced that they will seek review, a decision by the Justice Department not to go to the Supreme Court would make it very unlikely that the Court would take the case. As the four presidents of the nation's largest African-American and Hispanic organizations explained, the result would be "enormously harmful to minority and female job applicants" at radio and television stations and would undermine the bipartisan policy of "ensuring equal opportunity in the broadcast industry." A decision from the government must be made by mid-September, unless the government requests additional time.

The Attorney General's position, his responsibility for determining priorities for the Department of Justice, and his central role in determining administration positions on cases before the U.S. Supreme Court and other federal courts give him a far-ranging impact on the lives of Americans, as the wide range of issues addressed above make clear.

Moreover, his role in helping to shape the Supreme Court and the rest of the federal judiciary could determine the degree to which Americans' constitutional and civil rights are protected or restricted over the first half of this century.

John Ashcroft's public record as a right-wing ideologue was clear when he was nominated by President Bush and confirmed by the U.S. Senate. His appointments, as well as his department's actions and inaction on a range of issues, demonstrate that he is committed to carrying out a right-wing legal agenda that could radically restrict Americans' rights and liberties as well as the ability of the federal government to protect those rights and liberties.

Former Senator Edward W. Brooke, R-Mass., once said, "A right without a remedy is like a bell without a clapper - hollow and empty." In short, John Ashcroft's Justice Department can make some legal rights effectively nonexistent, by choosing not to enforce remedies that protect them, and can make others literally nonexistent by helping fill the federal courts with judges that will overturn the legal and constitutional basis for protecting those rights.

By embracing the narrowest interpretation of critical laws, and by seeking out judicial nominees who will do the same, Ashcroft and the Bush administration can dramatically limit the kind of remedies available to help enforce the Voting Rights Act, Title VI and Title VII of the 1964 Civil Rights Act, Title IX, which prohibits gender discrimination in education, the Fair Housing Act, the Americans with Disabilities Act, as well as statutes protecting reproductive rights and environmental protections. The scope of the potential damage is nothing short of breathtaking.

In many ways, the Ashcroft Justice Department is just getting under way. We fervently hope that the actions taken by Ashcroft and his colleagues over the long run will prove us wrong about the direction of the Justice Department and the federal judiciary under John Ashcroft. But on the basis of what we have seen during the first six months, it is abundantly clear that Americans must continue to closely monitor the Department's actions and be prepared to fight them when necessary.

What is at Stake

The Attorney General's position, his responsibility for determining priorities for the Department of Justice, and his central role in determining administration positions on cases before the U.S. Supreme Court and other federal courts give him a far-ranging impact on the lives of Americans, as the wide range of issues addressed above make clear.

Moreover, his role in helping to shape the Supreme Court and the rest of the federal judiciary could determine the degree to which Americans' constitutional and civil rights are protected or restricted over the first half of this century.

John Ashcroft's public record as a right-wing ideologue was clear when he was nominated by President Bush and confirmed by the U.S. Senate. His appointments, as well as his department's actions and inaction on a range of issues, demonstrate that he is committed to carrying out a right-wing legal agenda that could radically restrict Americans' rights and liberties as well as the ability of the federal government to protect those rights and liberties.

Former Senator Edward W. Brooke, R-Mass., once said, "A right without a remedy is like a bell without a clapper - hollow and empty." In short, John Ashcroft's Justice Department can make some legal rights effectively nonexistent, by choosing not to enforce remedies that protect them, and can make others literally nonexistent by helping fill the federal courts with judges that will overturn the legal and constitutional basis for protecting those rights.

By embracing the narrowest interpretation of critical laws, and by seeking out judicial nominees who will do the same, Ashcroft and the Bush administration can dramatically limit the kind of remedies available to help enforce the Voting Rights Act, Title VI and Title VII of the 1964 Civil Rights Act, Title IX, which prohibits gender discrimination in education, the Fair Housing Act, the Americans with Disabilities Act, as well as statutes protecting reproductive rights and environmental protections. The scope of the potential damage is nothing short of breathtaking.

In many ways, the Ashcroft Justice Department is just getting under way. We fervently hope that the actions taken by Ashcroft and his colleagues over the long run will prove us wrong about the direction of the Justice Department and the federal judiciary under John Ashcroft. But on the basis of what we have seen during the first six months, it is abundantly clear that Americans must continue to closely monitor the Department's actions and be prepared to fight them when necessary.

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