The Two Faces of John Ashcroft

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Democrats Had the Goods to Sink John Ashcroft's Nomination.  Now the Question Is Why Didn't They Have the Guts?

Clear and Present Danger
by James Ridgeway

WASHINGTON, D.C.—The uphill battle to stop John Ashcroft from becoming attorney general got a boost late last week, with the unexpected arrival of two dozen boxes stuffed with "opposition research" against the former senator from Missouri. The damning files
were gathered by Democrat Mel Carnahan, who was killed in a plane crash just weeks before the conclusion of a vicious, racially polarized campaign in which he successfully unseated Ashcroft.

The contents of these boxes, now sitting in the offices of People for the American Way, have become the hottest property on Capitol Hill.  They paint a portrait of a patriarchal, extremist Ashcroft entirely at odds with the bland, friendly image the ever-smiling conservative tries
so hard to project. In a report posted at the nonprofit's Web site (www.pfaw.org), the group reveals that Ashcroft has voted against abortion rights and even common forms of birth control, and systematically turned aside the judicial nominations of woman after woman.

When his appointment was first announced, Ashcroft seemed a sure bet. But as the details of his history with blacks and women began to raise eyebrows and questions, Ashcroft suddenly found his nomination at risk. "Significant opposition is building," says Nan Aron, head of the
Alliance for Justice. "More and more people are learning about his record." The Ashcroft nomination is so much at risk, in fact, that Bush's choice for labor secretary, Linda Chavez—suddenly caught in a rerun of Nannygate—may end up serving as the scapegoat who'll try to draw enough fatal fire away from Ashcroft to gain him Senate approval.

By the numbers, Republicans have the pull in the evenly divided Judiciary Committee to send the Ashcroft nomination to the Senate floor. Then things could get much trickier. Ashcroft could steal some votes from the ranks of Southern Democrats, but he could also lose the crucial support from what's left of the moderate Northeastern GOP—namely lawmakers like Olympia Snowe of Maine and Jim Jeffords of Vermont, who've been willing to break with the right-wing party line on abortion rights and the environment. With the chamber split 50-50, a few defections on either side could make the difference.

And there's another wild card in the deck. Civil rights groups arrayed against Ashcroft are privately plotting for a filibuster that could defeat the nomination. If indeed they can find a senator brave enough to make a kamikaze run against the new Bush administration, Democrats can undo the razor-thin Republican edge. It takes 60 votes to shut off the nonstop verbal stream of a filibuster; though Ashcroft supporters might be able to muster 51 or 52 votes to shove him through, the prospect of collecting 10 more backers would be daunting.

Yet who would have the guts to pull the trigger? As a former senator, Ashcroft enjoys the perks of the old fogies' club, who aren't known for trying to take each other out. What's more, the Democrats have a lackluster record for standing up and fighting the conservative
Republican juggernaut. Anyone launching a filibuster would stand to become a pariah in the club—perhaps even becoming an untouchable among the Democrats—but would also bask in the limelight.

Finding the person willing to play that role won't be easy. Could it be Hillary Clinton, who claims to have been victimized by the right-wing conspiracy? Hardly. One of the handful of women senators who back abortion rights, someone like Maryland's Barbara Mikulski, California's Dianne Feinstein? There's Paul Wellstone, whose bark has always been worse than his bite. Teddy Kennedy? New York's Charles Schumer has raised questions about Ashcroft. But would the circumspect Schumer bet his burgeoning Senate career on a filibuster? Doubtful.

Whoever takes Ashcroft head-on will have plenty of ammo. Ashcroft has left a lengthy trail of statements on his positions, which are far to the right of stock Republican tenets like limited government. He holds an honorary degree from Bob Jones University, which only recently lifted a prohibition against interracial dating. Ashcroft thinks Social Security is a bad idea, wants to ban flag burning, and in the interest of "constitutional freedom," would make it easier to pack a concealed weapon. He once said providing clean needles to drug addicts was like "issuing bulletproof vests to bank robbers."

Ashcroft on homosexuality: "I believe the Bible calls it a sin, and that's what defines sin for me."

On taxes: "In Washington, taxes and spending are the only things more addictive than nicotine."

On federal funding for the arts: "I believe it is wrong as a matter of public policy to subsidize free expression." Congress put "an end to funding for the National Endowment for the Arts. No more subsidized profanity, no more subsidized obscenity, no more silk-stocking subsidies
for the symphony."

On abortion: "We must start by voting to defend innocent human life. . . . God's precious gift of life must be protected in law and nurtured in love."

The son of a Pentecostal preacher, John Ashcroft is a man who doesn't drink, doesn't smoke, and doesn't dance. He doesn't mince words about his far-right views: "Two things you find in the middle of the road" are "a moderate and a dead skunk."

A hardliner like Ashcroft might make a good legislator, but his dogma fits him poorly for a role like attorney general. Yet it's exactly those staunchly held views that have the religious right salivating over the notion of Ashcroft as lead lawyer for the nation.

The responsibilities—and might—of the attorney general are enormous.  The AG interprets laws for the entire government, represents the United States in the courts, and makes sure the executive branch complies with Supreme Court rulings. As head of the Justice Department, the AG oversees the FBI, sets policy of the Immigration and Naturalization Service, administers the federal death penalty, and commands the Drug Enforcement Agency's war on drugs. The AG exerts strong influence over judicial appointments and directs the corps of U.S. attorneys nationwide.

As the string of recent decisions made by current attorney general Janet Reno shows, the long arm of the AG has reached down into every corner of the republic: from the siege of Waco and the shootout at Ruby Ridge, to the forced removal of Elián González and the sporadic enforcement of the Voting Rights Act in the Florida election.

Having Ashcroft serve as AG is especially important to the conservative movement because he provides a rare bridge between the free-market economic wing of the GOP and the Christers in the social wing. The free-market Republicans want as little government as possible, while the Christian fundamentalists want to employ the power of the federal
government to drive social change.

Ashcroft has two signature items on his agenda. The first is guns. He is a firm supporter of the NRA, which reportedly contributed nearly $400,000 to his last senatorial campaign. Two years ago, Ashcroft voted against an amendment to require safety locks on firearms. He
opposed a ban on assault weapons. And in 1999 he urged Missouri voters to legalize the carrying of concealed weapons. He also supports the NRA's efforts to have the FBI erase records it keeps on gun transactions immediately instead of holding them for future reference.

The second flagship issue for Ashcroft is his opposition to abortion. Pro-choice groups are concerned that Ashcroft might not only lead a drive to overturn Roe v. Wade, but also would refuse to enforce federal laws protecting abortion clinics from violence and harassment. But
Ashcroft would have the federal government reach further into people's daily sex lives. He once sponsored the Human Life Act of 1998, which attempted to express the medical nuances of fertilization as a matter of hard law—an effort supporters of abortion rights say would have resulted in a ban on the pill and IUDs.

But Ashcroft's antiwoman record goes beyond reproductive rights. In an online report, People for the American Way details his serial objection to women judges nominated for the federal bench—a years-long performance that might provide a preview of how, as AG, he
would handle recommendations for the court. Ashcroft tried to delay and defeat the 1996 nomination of Margaret Morrow, claiming she was a liberal activist who should be kept from the bench because of her efforts to promote pro bono legal work. Buoyed by bipartisan support, Morrow was eventually appointed, but only after Ashcroft helped stall it
for two years. He was one of 11 senators to vote against the 1998 appointment of Margaret McKeown, which had been stalled for two years, and one of 30 to oppose Ann Aiken's bid for a federal judgeship in Oregon. With 28 other senators, he voted against Sonia Sotomayor's
appointment to the Second Circuit Court of Appeals, which had been held more than a year. A wall of resistance from Ashcroft kept at bay for two-and-a-half years the confirmation of Susan Oki Mollway, the first Asian American woman to serve on the federal bench.

Ashcroft has an equally poor record on race. He opposes affirmative action, and voted to curb laws aimed at preventing banks from redlining minority neighborhoods, denying loans to consumers there. Sometimes hisantiminority stances are couched in the old states' rights patois of the segregationists. He gave a 1998 interview to the neoconfederate magazine Southern Partisan, in which he congratulated the publication. "You've got a heritage of doing that, of defending Southern patriots like Lee, Jackson, and Davis," Ashcroft said. "Traditionalists must do more. I've got to do more. We've all got to stand up and speak in this respect, or else we'll be taught that these people were giving their lives, subscribing their sacred fortunes and their honor to some perverted agenda."

Other times, his antiminority maneuvers come under the cover of the right-to-life movement, reports People for the American Way. As a senator, Ashcroft voted in 1998 against the nomination of Dr. David Satcher, an African American, for surgeon general because he was
pro-choice, "someone who is indifferent to infanticide." Ashcroft had done the same to Dr. Henry Foster, a black physician who supported abortion rights.

And finally, he led the move to block confirmation of James Hormel as ambassador to Luxembourg, on the basis that Hormel was openly gay. Only Ashcroft and Senator Jesse Helms voted against Hormel in the Senate Foreign Relations Committee, but because Helms held the committee chair, the pair was able to keep the nomination from a vote by the full Senate.

When Ashcroft comes up for his own vote before his former Senate colleagues, he will most likely face his strongest opposition from Democrats over his bouncing of black judge Ronnie White, a member of the Missouri Supreme Court nominated by Clinton for a federal
assignment. At the time Ashcroft was up for reelection, running on a "tough on crime" platform. During the early stages of the debate on White, Ashcroft evidenced little more than routine interest, asking questions about partial-birth abortion and gay rights. But as his own
reelection campaign against Mel Carnahan heated up, Ashcroft zeroed in on White. The senator seized on White's lone and reluctant dissent from the execution of a cop killer, who shot three officers and a sheriff's wife. White wrote that even though the jury rejected the killer's claim of insanity, there must have been something wrong with the man.

Ashcroft argued that the law enforcement community had raised a "red flag" about White. But as it turns out, Ashcroft's fulminating was based on what looks like a malevolent distortion of the judge's views. As an inquiry by the St. Louis Post-Dispatch revealed, one of the largest police organizations in the state supported White, while the others had been actively lobbied by Ashcroft or his allies.

Ashcroft's "marathon public crucifixion" of White caused African American Gentry Trotter, an Ashcroft fundraiser, to resign from the senator's campaign, and so galvanized black voters in Missouri that they voted for Carnahan, even in death.

The whole grisly scene may soon be played out again, with Democrats threatening to call White for testimony, just as Anita Hill was called to testify against the nomination of Clarence Thomas. Only this time, liberals may have a real chance. Conservatives may just have gone too far.

Why Did Ashcroft Try to Help Dr. Sell?

by Joe Conason

During his long political career, tough John Ashcroft has rarely, if ever, spoken out on behalf of the rights of criminal defendants.  He carried out seven executions as the governor of Missouri. In the Senate, he supported fewer  protections for death-row inmates as well as harsher penalties for juvenile offenders. He opposes expanded   treatment for drug offenders. Last year, he fiercely (and successfully) opposed the nomination of Ronnie White  to a federal judgeship, because the black jurist is supposedly “pro-criminal.”

But there’s at least one criminal defendant for whom Mr. Ashcroft—now awaiting confirmation as U.S. Attorney General—has demonstrated real concern. That would be Dr. Charles T. Sell, a St. Louis dentist indicted by the Justice Department on charges that include conspiracy to murder an F.B.I. agent and a federal witness.

The strange case of Dr. Sell—imprisoned for much of the past three years in the psychiatric ward of the federal prison in Springfield, Mo.—began in May 1997, when he was arrested in his office by federal agents on charges of defrauding Medicaid. A year later, the government charged the dentist and his wife, Mary Sell, with plotting to kill the F.B.I. agent who arrested him, as well as a former employee who was the chief witness against him. 

The evidence includes taped conversations described as “incriminating” by a Louis Post-Dispatch reporter who listened to them, and statements by a couple who say the Sells tried to hire them to carry out the murders.

While serving as a member of the Senate Judiciary Committee, Mr. Ashcroft made several inquiries to the Justice Department on behalf of the dentist, according to Gordon Baum, head of the Council of Conservative Citizens, a militant white racialist group headquartered in Missouri, and the Post-Dispatch. As recently as last September, while he campaigned for re-election to the Senate, Mr. Ashcroft met personally with a prominent C.C.C. member named Thomas Bugel to discuss how he could assist Dr. Sell.

The case has remained in legal limbo since 1998 because federal authorities believe Dr. Sell is mentally ill and therefore unfit to stand trial. While incarcerated, he has refused to take anti-psychotic drugs prescribed by a government psychiatrist. He believes that the Clinton administration is persecuting him because, as an Army Reserve officer, he criticized the government’s conduct during the Branch Davidian siege in Waco, Texas. Federal prosecutors have declined to comment on the case.

But his prosecution and imprisonment have become a cause célèbre among leaders of the C.C.C. Mr. Baum, who resides near St. Louis, confirmed that Dr. Sell has been a staunch C.C.C. member. (He advertised his dental services on Mr. Baum’s radio program.) As a longtime friend and former patient, Mr. Baum added that he firmly believes in the accused dentist’s professed innocence.

“We as an organization have never made any efforts to be involved in Dr. Sell’s plight,” insisted Mr. Baum, who gained notoriety briefly in 1998 following media reports about Senate Majority Leader Trent Lott’s involvement with the C.C.C.’s Mississippi chapter. He said he doubted that Mr. Ashcroft’s assistance to Dr. Sell had anything to do with his C.C.C. connections. “Everything has been done by individuals, and they’ve probably kept the C.C.C. out of it,” he said.

Yet reports about the case appear on the C.C.C. Web site, where Mr. Ashcroft’s nomination as Attorney General was recently lauded because of hopes that he will free Dr. Sell.

Although Mr. Bugel, the C.C.C. member with whom Mr. Ashcroft met to discuss Dr. Sell’s case, is no longer active in local politics, he became well known in St. Louis a decade ago while serving on the St. Louis School Board. He led a white faction that was widely criticized for inflaming tensions in the racially divided city. He also once headed the Metro South Citizens’ Council, an offshoot of the White Citizens’ Councils set up across the South to oppose racial integration.

Mr. Bugel said his support of Dr. Sell has nothing to do with politics, but reflects his concern over “the right to a speedy trial and to be free from cruel and unusual punishment.” The government is withholding videotapes, he said, that would prove the dentist was beaten, scalded and shackled for 24 hours. He pointed out that Senator Christopher Bond and Representative Jim Talent, both Missouri Republicans, have also made official inquiries
on behalf of Dr. Sell. “We got a thousand people to sign a petition asking our Congressional delegation to look into this mistreatment, which we called torture,” he said.

Mr. Bugel said he wonders why neither of Missouri’s two Democrats in Congress, Richard Gephardt and William Clay, responded to his pleas for help. But it might be just as fair to wonder how Mr. Ashcroft—who will oversee the F.B.I. if he is confirmed as Attorney General—decides which defendants are worthy of his concern and which are not.

Information for the following section was obtained from Salon Magazine at http://www.salon.com, and several other investigative web sites.  For another perspective go to http://www.bartcop.com

Constitutional Separation of Church and State Issues and Policy Problems with Senator Ashcroft's "Charitable Choice" Provisions

The "Charitable Choice" provisions, which have been offered on various public health or social service bills by Senator John Ashcroft (R-MO), present many constitutional and practical problems.  we will outline the dangers the provisions pose to the Establishment Clause of the First Amendment, to beneficiaries of assistance, and to the mission of religious faiths.

Voices from across the political spectrum have criticized these provisions for the policy problems they present. Organizations ranging from the ACLU to the Institute for Justice have questioned the provisions' constitutionality.

The "Charitable Choice" provisions violate the Constitution's Establishment Clause

The "Charitable Choice" provisions are a departure from current law and practice because they seek to shift government-funded social service programs to "pervasively sectarian" religious institutions, such as houses of worship. Under current law, religiously affiliated organizations are, in some cases, permitted to provide social services with government funds. Although the Supreme Court has ruled that these "religiously affiliated" organizations, such as Catholic Charities, are not per se prohibited from receiving government grants for social work, the Court has not permitted the funding of institutions that are "pervasively sectarian" because it would violate the Establishment Clause.

The Supreme Court, in Bowen v. Kendrick, explained that "[o]nly in the context of aid to pervasively sectarian' institutions have we invalidated an aid program on the grounds that there was a substantial' risk that aid to these religious institutions would knowingly or unknowingly, result in indoctrination."  In various cases, the Court listed among the factors to be used to determine if an institution is "pervasively sectarian": 1) location near a house of worship; 2) an abundance of religious symbols on the premises; 3) religious discrimination in the institution's hiring practices; 4) the presence of religious activities; and 5) the purposeful articulation of a religious mission.(3) 

Thus, it is not simply the case that the legislation lacks adequate safeguards against unconstitutional activity; rather, it contains many provisions that would ensure violations of the First Amendment religious rights of taxpayers by forcing states to contract with pervasively sectarian providers.

The Provisions Authorize Employment Discrimination Based on Religion

The "Charitable Choice" provisions would allow a religious organization to engage in religious discrimination against employees who are being paid with taxpayer funds. Although religious organizations are currently granted an exemption from the prohibition on religious discrimination in hiring in Title VII of the federal civil rights law, this exemption should not extend to employees who are hired to work on, and are paid through, government grants or contracts.

Furthermore, the bill goes well beyond the statutory exemption in Title VII by explicitly allowing religious organizations to require that employees paid by taxpayer dollars adhere to the "religious tenets and teachings of" the religious institution. The legislation also mandates that employees must follow rules regarding the off-the-job consumption of alcoholic beverages. This would allow a religious organization to not only exclude non-believers from government-funded employment, but would allow the group to advance religious doctrines with taxpayer money.

"Charitable Choice" Does Not Protect Beneficiaries' Religious Liberty Rights

The "Charitable Choice" provisions do not provide adequate protection for the religious liberty of social service beneficiaries. Under the legislation, a state could completely shift government-funded social services for a certain geographic area or a specific social service to a religious institution. This, of course, would lead to innumerable violations of religious freedom and conscience of beneficiaries who are assigned to religious organizations to receive social service benefits and services.

Despite these obvious problems, the legislation does not provide for notice to be given to beneficiaries informing them of their right to request an alternative provider of services. Thus, a beneficiary might assume that they have no option but to go to the assigned religious institution or forgo their benefits.

Additionally, the "Charitable Choice" provisions do not require that an alternative provider be set up within a specific time framework, and there is no requirement that the alternative provider has to be as equally accessible to the beneficiary as the original provider. The alternative provider could be set up across the state from where the beneficiary lives and therefore set up a completely impractical alternative. Furthermore, there is no provision for legal recourse for a beneficiary who is discriminated against on the basis of religion by an organization providing social services, although the legislation provides religious institutions with a cause of action against the state to enforce it "right" to contract for social services.

The Federal "Charitable Choice" Provisions Trump State Constitutional Rights

The federal "Charitable Choice" legislation explicitly preempts numerous state constitutions that contain provisions designed to protect the religious liberty of its citizens. For example, the Constitution of the state of Missouri contains the following provision: "[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion..."(5) However, due to the preemption of state law by the federal "Charitable Choice" law, Missouri officials will not be able to enforce the state constitution.

The "Charitable Choice" federal directives also bind the hands of state governments under the guise of "nondiscrimination against religious organizations." Under the Ashcroft language, if a state government determines that the funding of certain pervasively religious entities would violate the Establishment Clause, then it will surely face a multitude of lawsuits from any number of religious organizations claiming the "right" to contract with the state. State governments would also be powerless to ensure that its citizens are not subject to proselytization by religious social service offices replete with sectarian "art, icons, scripture" and "other symbols."

The Provisions Will Have an Adverse Effect on Religious Mission

The Ashcroft language will adversely effect the religious mission of many houses of worship. Part of the rationale for the Ashcroft provision is to encourage religious institutions to provide social services to their communities. In fact, many churches, synagogues and mosques already provide these benefits to their communities, and do so very well with private funds. Dependence on federal funding will harm the autonomy and religious freedom of these institutions.

Timothy Lamer, an Evangelical Christian critical of the "Charitable Choice" provisions, wrote in The Weekly Standard that Christian conservatives, instead of leading the charge for Ashcroft's proposal, should be the first to recognize how problematic it is. If the money doesn't go toward proselytizing, it will be ineffective. But if it does, even indirectly, it will seriously violate both conservative and basic American principles.(6)

Mr. Lamer went on to state that a basic tenet of [religious liberty] is that citizens should not be taxed to support religions with which they disagree. Evangelicals in particular should remember that under the Ashcroft proposal, state governments will decide which charities get the federal dollars... Whichever sects have the most influence in each state will get the coveted funds.(7)

Marvin Olasky, author of The Tragedy of American Compassion, wrote in USA Today that the "Charitable Choice" provisions would lead "religious groups into temptation."(8) Olasky explained that Ashcroft's provisions "miss[] an important point" - that "Christian efforts take a bite out of poverty because of Christ," and unless religious groups "cheated by sliding money from one category to another" they would violate the prohibition on the direct use of government funds for sectarian worship or instruction.

If the government begins funding services traditionally funded by the church community, a likely result will be a drop in participation in such activity by church members and increased dependence on government funding. The influence of federal dollars and oversight will surely undermine the mission of religious institutions.

Conclusion

The Ashcroft provisions violate the Constitution and are antithetical to the American ideal of religious liberty.  Indeed, the Supreme Court stated this year that, "we have recognized special Establishment Clause dangers where the government makes direct money payment to sectarian institutions."(9) These provisions present both the problem of government funding of religion and religion acting in the place of government. Congress would do taxpayers and those in need greater justice by leaving houses of worship free of federal interference and the influence of government dollars. Religious institutions already provide religious social services -- with parishioners' private contributions. Congress should not undermine this tradition by inviting "Big Government" into our nation's houses of worship.