dictionary

The Bork effect and the proper standard for Ashcroft's confirmation fight By Edward Lazarus FindLaw Columnist Special to CNN.com

	FINDLAW
Legal commentary from FindLaw's Writ Web Guide Consumer Center Select a topic Bankruptcy Discrimination Divorce Estate Planning Landlord-Tenant Personal Injury Taxes Law Dictionary
FINDLAW Column Archive

(FindLaw) -- The ghosts of Zoe Baird, John Tower, Robert Bork, and Anita Hill have returned to Capitol Hill -- as the Senate heads, seemingly inevitably, toward a take-no-prisoners confirmation fight over President-elect Bush's choice for attorney general, former U.S. Sen. John Ashcroft of Missouri.

What better time, then, to sort through some of the mess we have made of the system by which we select our highest-ranking public servants.

Debate over the confirmation standard

In the wake of the mud-slinging, truth-destroying experience of recent confirmation battles, the legal academy has split over what criteria the Senate should use in deciding whether to confirm presidential nominees.

Some scholars have suggested that the Senate's constitutional duty to give advice and consent for presidential nominees should be limited to assessing a nominee's professional qualifications. Anything more than a glorified resume check, they argue, will inevitably extend the recent trend towards destructive partisan battles and send the best candidates for high office running for the hills, rather than volunteering for public service.

Other scholars maintain, however, that Senators have a constitutional (as well as political) responsibility to sharply scrutinize presidential nominees. Accordingly, they encourage Senators to assess those nominees explicitly on the basis of their political views.

The Ashcroft nomination illustrates just how difficult it is to find a satisfactory formula for how the Senate should approach its confirmation responsibilities. In my own mind (fully admitting my generally left-of-center leanings), I put the question this way: Is Ashcroft merely a bad nominee for attorney general, or is he so bad that the Senate should deny him confirmation?

The basic charges against Ashcroft run essentially as follows: As a political matter, he is an extreme conservative -- an opponent of affirmative action, Roe v. Wade, and gay rights, and a proponent of draconian anti-drug laws and the death penalty.

Furthermore, Ashcroft's conservatism sometimes seems to take on a racist cast. In addition to opposing the nomination of various minority Clinton nominees, he has pandered to various racist groups - even writing an article in Southern Partisan, a neo-Confederate fish-wrap.

Finally, there is the issue of Ashcroft's integrity. As has now been well documented, in his campaign to torpedo the nomination of Ronnie White -- the first black justice of the Missouri Supreme Court, and a Clinton nominee to the federal bench -- Ashcroft resorted to all sorts of misrepresentations about White's record.

Standards differ for judicial, executive branch nominees

In evaluating these accusations, I start with a fact almost universally ignored by the liberal commentators clamoring for Ashcroft's rejection: George W. Bush has nominated Ashcroft for a Cabinet position, not a judgeship.

Why is this fact significant? In my view, a president is entitled to greater latitude, especially when it comes to a nominee's political views, in filling an executive branch position than in filling a judicial vacancy - and thus seeking to influence the make-up and political leanings of a wholly independent branch of government.

Put another way, president is entitled to his own "team," but not to his own "court." And the Senate should calibrate the rigor with which it examines nominees accordingly.

Had Bush nominated Ashcroft to the Supreme Court, I would have no hesitation in recommending senatorial rejection. Ashcroft has called for the repudiation of women's reproductive rights, expressed a bizarre sympathy for the Old Confederacy, harshly opposed various forms of racial justice, and shown a blind affection for the death penalty and the drug war.

The Senate would have every right to prevent Ashcroft from infusing the interpretation of our most basic laws with his brand of conservatism. It seems to me, however, that Bush is entitled to have an attorney general of Ashcroft's ultra-conservative political stripe, if that is what he wants.

The choice may speak volumes about the sincerity of Bush's "compassionate" conservatism. Presumably, it will provide a basis for future criticism of the Bush administration. But for more liberal Senators to reject Ashcroft over such disagreements of policy, they would have to claim for the Senate a political veto power over the president's own Cabinet. That feels deeply counterintuitive and is at odds with long-standing tradition.

Reasons to reject executive branch nominees

This does not mean that the Senate should simply rubber-stamp every presidential Cabinet appointee. Surely, the Senate has the right, even the duty, to reject a nominee who is personally or professionally unqualified (or disqualified) from holding the office in question. And, while the precise standard may be indistinct, does anyone doubt that the Senate should reject a nominee for attorney general who turns out to be an outright racist or lawbreaker?

Still, even the most ardent Ashcroft-bashers have yet to make a case on these grounds. No one has accused Ashcroft of criminal conduct such as violating campaign finance laws or not paying his taxes. And the evidence that he is racist does not amount to much.

Praising Jefferson Davis in a kooky right-wing journal is far more likely the act of a political panderer than a hard-core bigot, especially given Ashcroft's overall record on race issues in Missouri (for example, his support for a Martin Luther King holiday).

Ashcroft's real sins lie in a much grayer area. In the Senate, he became a leading practitioner of one of the worst forms of conduct currently plaguing American politics: Ashcroft became an enthusiastic "Borker."

Nowadays, "to Bork" someone has come to mean simply mounting a strong opposition to confirmation. (The term refers to the highly politicized defeat of Reagan Supreme Court nominee Robert Bork in 1987.) But "Borking," as the term was originally used, also involved the use of any number of ethically suspect methods for defeating a nomination, including a public campaign of lies and distortions.

As a member of the Senate Judiciary Committee, Ashcroft proved a master of this craft. In the case of Ronnie White, Ashcroft's gross distortions of White's judicial record (tarring him falsely as a "pro-criminal" softie) torpedoed the nomination.

And Ashcroft had other less publicized victims. For example, he also leveled wildly inaccurate accusations against Margaret Morrow, a Clinton nominee to the federal district court in Los Angeles. (The incident has gone largely unnoticed because Ashcroft succeeded only in delaying rather than defeating Morrow's nomination.)

Ashcroft also perfected the secret art of the senatorial hold - the anti-democratic practice by which a single senator, under the cloak of confidentiality, may place a hold on a presidential nominee. Indeed, the Senate would be remiss if it did not ask Ashcroft exactly how many times and for what reasons he used this hold procedure and thus denied a nominee a full and open hearing on the merits of his or her candidacy.

The crucial issue in the Ashcroft campaign is not his right-wing politics, but his record of intellectual dishonesty and political cowardice in the Senate. These are terrible traits for an attorney general -- who, as recent history has shown, must not only uphold the rule of law, but also do so in the face of complex and competing political pressures. While it may be a close call, can anyone really argue that it would be improper to reject a nominee so singularly unsuited for the office to which he has been named?

One thing, however, is certain. If the Senate does reject Ashcroft, no one should lose sleep over it. It would be poetic justice for a man who deprived so many others of confirmations they rightly deserved.

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court." Edward Lazarus is also a FindLaw columnist.

Copyright © 1994-2000 FindLaw. Printed with permission from FindLaw