- The Washington Times - Wednesday, December 27, 2000

Attorney General-designate John Ashcroft promises dramatic change from Janet Reno's stewardship at the Justice Department. His presence will be like swapping a liberal plough horse for a conservative thoroughbred, a Georgie O'Keefe for a Norman Rockwell, and a Brahm's "Lullaby" for the "William Tell Overture." Standards for appointing federal judges; litigation policy concerning affirmative action, racial gerrymandering, abortion, church-state relations and antitrust; and, use of executive orders to circumvent Congress will be thoroughly overhauled. Mr. Ashcroft harbingers a Justice Department in prime colors, not pastels, which cannot be said for Bush designees to preside over sister Cabinet departments or agencies.
Federal judicial appointments are the most enduring legacy of any attorney general. With lifetime tenure and interpretive authority over the Constitution and characteristically ambiguous federal statutes and regulations, contemporary federal judges wield policy discretion on a virtual par with Congress. As Alexis de Tocqueville observed more than 150 years ago, significant political questions invariably find their way to the courthouse cloaked as legal disputes. In its last few terms alone, the United States Supreme Court has invalidated approximately a score of federal laws. And after the Florida presidential litigation ordeal culminating with the high court's decree in Bush vs. Gore, no one would contest the importance of judges and justices in our constitutional constellation, every bit as prominent as the Big Dipper.
As a senator and presidential aspirant, Mr. Ashcroft vocally championed judicial restraint and deplored judicial activism. The twin phrases convey sharply contrasting pitch and tone, but not audible librettos. Generally speaking, judicial restraint signifies opposition to interpretations that stray broadly from the plain language and purpose of constitutional and statutory texts. To the extent linguistic ambiguity persists, the practices and customs at the time of the ratification or enactment should be dispositive. Proponents of judicial activism, in contrast, conceive of the Constitution and statutes as organic documents that grow with the times without the necessity of new congressional laws or constitutional amendments. Accordingly, in their view, judicial interpretations should echo changing social and cultural mores that can be felt if not empirically proven. Legal words may sound the same, but as time passes they are reduced to hominems of their original meanings in the hands of enlightened judges.
As a senator, the attorney general-designate held extensive hearings exploring ways to reign in judicial capers and coltishness. As attorney general of Missouri, he argued against an extension of the Roe vs. Wade abortion precedent in Planned Parenthood vs. Danforth (1976). He spearheaded the defeat of President Clinton's nomination of Missouri State Supreme Court Justice Ronnie White to the federal district court based on what Mr. Ashcroft detected were unmistakable earmarks of judicial activism regarding the death penalty and otherwise.
In sum, Mr. Ashcroft's commitment to filling judicial vacancies with crusaders for interpretive restraint is unquestionable. Equally important, the attorney general will hold the commanding hand in judicial appointments in the Bush administration, unlike several of his predecessors who encountered powerful and seasoned White House counsels as rivals for that piece of turf. President-elect Bush's counsel, Al Gonzalez, is an ingenue in the game of judicial appointments. He lacks the credibility and experience that would be necessary to thwart Mr. Ashcroft's ambition to augment the conservative hue of the federal judiciary.
It can be expected that Mr. Ashcroft will establish a judicial selection review committee in the Justice Department to evaluate from past writings and interviews the philosophies of prospective nominees. He will probably personally appraise individual candidates for especially significant federal judgeships, and lead the search for a Supreme Court appointee in the event a vacancy occurs.
The attorney general-designate, however, may be forced to moderation in his judicial recommendations. As a senator, he hailed the constitutional power and duty of the upper chamber to scrutinize the interpretive philosophies of presidential nominees and to deny confirmation to those the Senate disapprobated. The 107th Congress will sport a Senate divided 50-50 between Republicans and Democrats, with Vice President Dick Cheney voting to break ties. As was indicated by President Clinton's impeachment trial and acquittal, however, moderate Republican defectors to the Democrats are probable for Bush judicial nominees who are prime color practitioners of restraint skeptical of Roe vs. Wade and sister exercises of judicial invention. Such defections were instrumental in shipwrecking Judge Robert H. Bork's appointment to the Supreme Court. Moreover, Mr. Ashcroft could be called by Democrats as a witness against himself to justify the Senate's cannonading of a judicial conservative on the ground of philosophy alone. Unless President Bush exerts muscle behind judicial appointments, Mr. Ashcroft's blueprint for revamping the federal judiciary may collapse.
President Clinton's Justice Department defended racial preferences in college admissions, scholarships and otherwise; assailed partial birth abortion prohibitions; opposed the constitutionality of school vouchers redeemable at private schools, whether secular or sectarian; saluted racial gerrymandering to achieve a quota of elected minorities; and, invoked the antitrust laws to attack business size as opposed to anti-competitive practices and effects, e.g., the Microsoft case. Mr. Ashcroft would take a U-turn in all of these areas aided by the powerful intellectual influence of the Office of Solicitor General and the reputation of the Department of Justice generally.
Depend upon it: Mr. Ashcroft's confirmation hearings will be well worth the price of admission.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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