What Ashcroft might have said

Posted: Jan 22, 2001 12:00 AM
Sen. Dianne Feinstein, D-Calif., quizzing John Ashcroft, asked a question both interesting and profound. What I can't understand, she asked her former colleague in the Senate, is how you can feel as strongly as you do about all these issues and still undertake to enforce the law, as written and interpreted?

All Mr. Ashcroft could say was what he said every few minutes to everyone, namely that he would do as he promised, enforce the law. Other witnesses, in Congress and elsewhere, agreed that he is a man without guile, that he will do as he said he would do.

We can take him at his word and feel confident. Of what, specifically? Confident that he would protect the right of abortionists ("reproductive health consultants") to practice their profession, and protect also the right of free-to-choose enthusiasts to demonstrate. He was asked whether he approved of the Roe vs. Wade decision, and he replied that he would not himself have voted as the court had done, but that as far as he was concerned, Roe was the law of the land, and the law he would undertake to defend.

Other questions were less challenging. Someone got around to quoting something he had said to the effect that gun ownership was a device to guard against tyranny. The senator wanted to know -- Are you saying, senator, that we are living under tyranny? No, was the rejoinder.

Sen. Ashcroft has been praised by acute observers for never, ever rising to the bait. He might have answered: "Senator, the Second Amendment was passed as a hedge against the practice of tyranny, which had been exercised 15 years earlier. An endorser of the anti-establishment clause of the Constitution isn't affirming that right because he lives in a state with an established religion."

What Senator Ashcroft manifestly did not feel at liberty to do was to expatiate heuristically on the subjects being explored. The First Amendment clause against an established religion is being variously interpreted and tested in different parts of the country -- most conspicuously, in the matter of public funds for private education, in the manner of junior G.I. Bills. Are we to assume that an attorney general who believes that vouchers, such as those being used in Florida, could expect no support from a Republican administration if the objection were raised before a federal court (which is bound to happen) that such vouchers were unconstitutional? It is a traditional practice for the Justice Department to file amici curiae briefs when an administration believes that its interpretation of the Constitution is correct.

The Roe vs. Wade decision has been indirectly tested and probed several times. The Supreme Court has leaned in the direction of permitting reasonable modifications, while holding on to the fundamental affirmation of abortion as a constitutional right. It would be fainthearted and wrong for the attorney general to decline to argue that, for instance, partial-birth abortions can't be constitutionally regulated by Congress.

We get to the profoundest question of all, which is, what can reasonably be demanded of an attorney general, or indeed of a governing official?

Some years ago Gov. Frank Clement of Tennessee commuted the sentence of someone on death row. And when he left office, he commuted the sentences of everyone on death row. Gov. Hugh Carey of New York went Gov. Clement one step further. He informed New York legislators that if they proceeded to enact a law re-establishing capital punishment, he would instantly commute the sentence of anyone sentenced to death.

Some critics (I was one) charged that Mr. Carey's open-ended contumacy was an impeachable offense. He might have said that he would resign as governor rather than carry out the law; or else found some devious way to circumvent direct responsibility for enforcing such a law.

There wasn't much criticism of either the governor of Tennessee or of New York, but it would have caused Sen. Kennedy to perish in his chair with disbelief if Mr. Ashcroft had said that he would not protect the rights of people to execute unborn children. And of course, he was right to declaim as he did his responsibility to defend the rights of the abortion-minded. The moral perspective is too undeveloped on the question of abortion.

Law-abiding attorneys general in the past have had to enforce the Fugitive Slave Act. The moral perspective against capital punishment is everywhere being pressed. If Mr. Ashcroft had said that he would never ask for a capital sentence in a federal prosecution because of his opposition to that penalty, what would we have got from Senators Biden and Feinstein and Kennedy? A reminder that his only function was to press the law?

Well, the good senator will be confirmed, and will do the fine job expected of him. But he has lost fine forensic opportunities.