THE ASHCROFT NOMINATION: Separating The Man From The Office

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Jan. 18, 2001

The debate over Senator John Ashcroft's nomination for the position of Attorney General has become, in essence, a shouting match — as was proved Tuesday when the first day of the Judiciary Committee's hearings was interrupted by four black men suddenly standing and yelling "Ashcroft kills," until they were escorted from the room by the Capitol police.

Sitting directly behind them, I found the sudden noise of the shouts and the minor scuffle between protesters and police disturbing, but it occurred to me later that it might have been less disturbing than the discourse in the front of the room. It was, at least, easily cleared up. What were our elected representatives talking about?

What's Love Got to Do with It?

The Republicans were talking about what a fine man Ashcroft is, and a number of the Democrats chimed in on this score. The Democrats were talking about how much they disliked many of Ashcroft's views, even though he is a fine man and someone with whom they enjoyed working when he was in the Senate. They clearly like the guy, really.

To quote Tina Turner, what's love got to do with it? Her answer is the same as mine: Absolutely nothing. This is not an initiation ritual into a fraternity. To the contrary, it is the confirmation (note the use of "confirmation" and not "selection") by the Senate of the President's choice for Attorney General. To the extent that the new administration is intent on ridding the Republican party of its hoary old boys' network feel, the hearings were evidence of failure. Their confirmation responsibilities are irrelevant to their personal feelings about the man.

To the extent that the Senate now believes that it somehow has the power to select the nominee, and not just the power to consent to the nomination, it needs to reread the Constitution.

What's Ideology Got to Do with It, Either?

The Democrats have found a moment of political opportunity to air their grievances against the Republican Party platform, pander to interest groups, and send a message that bipartisanship is a precious commodity in a divided Senate. But the election is over (as are the impeachment proceedings against President Clinton), and the Constitution now directs the attention of our elected representatives to the business of governing in the interests of the people.

One of those duties is advising and consenting to the President's Cabinet, a tradition that appropriately has been marked more often by deference than hostility. That deference should be demonstrated in these hearings, though so far it has not been.

The Attorney General Nominee's Devotion to the Rule of Law Is Everything

The one lesson that we can all take from the Ashcroft hearings is that one should not burn one's bridges, should always act on the merits, should maintain integrity in every situation, and should simply do what is right, without regard to the consequences. Though this code of conduct seems to be apotheosis of the Washington mentality, it is also a code to which Ashcroft has clearly adhered.

I say that after having watched the new Senator Carnahan, a Democrat, introduce John Ashcroft, who halted his campaign after the death of her husband; after having listened to Ashcroft defend his decisions to vote against Clinton Administration appointees; and after having heard the Democratic Senators make it quite clear that this is payback time for the impeachment and for the delays in confirmation of President Clinton's federal judicial nominations.

One never knows when the tables will be turned in this crazy life. Ashcroft had a substantive answer to every charge of bias, and one could not help but get a sense that this is a man who has lived by this code.

If neither love nor ideology has anything to do with the nomination of the Attorney General, then what does? The answer the Constitution provides is quite simple: the Attorney General's ability to respect the rule of law, and thus to separate whatever ideology he holds from his duties to enforce the nation's laws.

The Senate should confirm a nominee who has this ability, even if Senators disagree with his or her beliefs. And conversely, even if a nominee's beliefs were perfectly in sync with the Judiciary Committee (or full Senate's) members', if that nominee did not profess devotion to the rule of law, he or she would be unfit for the job.

Ashcroft clearly respects the rule of law, and has separated ideology from enforcement duties on many previous occasions. He repeated these commitments with passion in his opening statement on Tuesday. He did not stop at personal promises, though; he rightly praised the rule of law as a cardinal achievement in the United States constitutional experiment.

The Individual versus the Office He Holds

The Constitution treats individuals as distinct from their office, and believes that individuals are capable of selfless, not self-serving, public service. The system cannot work in the absence of either premise. What I found so jarring about Tuesday's hearings was the floating presumption–predominantly in the Democrats' prepared statements–that, contrary to these constitutional premises, any man's beliefs necessarily would drive him to abuse the power of his office and to impose his beliefs on the government and the people.

This logical leap — from the existence of power to the necessary imposition of individual ideology — is a product of our modern inclination to treat all individuals as self-centered and self-serving (a view that is unfortunately encouraged by unreflective use of economic precepts, such as the idea of the "utility-maximizing rational actor," in legal contexts). But the Constitution stretches the image of man from self-serving to public serving, and thereby introduces the opportunity for heroism and leadership in the public interest.

Office-holding and Freedom of Belief

Ashcroft left out one half of the magic of the United States' system when he praised the rule of law, though surely only because it was beyond the purview of the discussion at hand. The crucial aspect of the rule of law in the United States that he did not mention is its marriage to a devotion to the right to believe whatever one chooses.

As was pointed out several times during the hearing, the Constitution prohibits a religious litmus test for government service; anyone, holding any belief, has the right to ascend to national office. It is because of our collective devotion to the rule of law that individuals of differing religious, philosophical, and political beliefs can come together in a body like the Congress to govern peaceably.

So the fact that Ashcroft holds strong views hardly disqualifies him from holding the office of Attorney General. Indeed, when deeply held convictions become a disqualifying factor for public service, we will have sacrificed fully one half of what makes the Constitution so unique and so successful.

The primary question, posed by the Constitution, is whether Ashcroft would obey the rule of law, and on that score his answers amounted to an emphatic "Yes." Under our constitutional structure, that is, and should be, enough.


Marci A. Hamilton, a FindLaw columnist, is Visiting Professor of Law at New York University School of Law. Her e-mail address is hamilton02@aol.com.

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