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."
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.
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.
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."
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."
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.
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.