Pyrrhus Testifies
Ashcroft should be confirmed, but it won't be much of a victory for conservatives.


Ramesh Ponnuru

“As is well known, consistent with Republican United States attorneys general before me, I believe Roe v. Wade, as an original matter, was wrongly decided. I am personally opposed to abortion. But as I have explained this afternoon, I well understand that the role of attorney general is to enforce the law as it is, not as I would have it. I accept Roe and Casey as the settled law of the land. If confirmed as attorney general, I will follow the law in this area and in all other areas. The Supreme Court’s decisions on this have been multiple, they have been recent, and they have been emphatic.” — John Ashcroft testifying before the Senate on Tuesday

If I were a senator grilling John Ashcroft — regardless of my own position on abortion — I’d have a few questions about these remarks. What does it mean, for instance, for an attorney general to “follow” Roe and Casey? Those cases prohibit legislatures from protecting the unborn. But what instructions do they give attorneys general? If Louisiana passes a law to regulate abortion, would AG Ashcroft send in U.S. marshals? What does Ashcroft mean when he describes the Supreme Court’s 5-4 decision last year about partial-birth abortion — the only “recent” decision on abortion — as “emphatic”? In what sense can the Court’s abortion jurisprudence be described as “settled”? Casey, as Justice Scalia pointed out in dissent, revised Roe dramatically; and the authors of the Casey plurality disagreed bitterly in the partial-birth case.

What liberals mean by “following” Roe and Casey is, among other things, that the AG should not instruct his Solicitor General to ask the Supreme Court to overturn them. This morning, Ashcroft indicated that he agrees with this interpretation. This is an astonishing sell-out. The first Bush administration asked the Court to overturn Roe (Ken Starr was SG at the time), and public opinion has moved in an anti-abortion direction since then. What’s next? Will Ashcroft demand that judicial nominees pledge their fealty to Casey?

Ashcroft’s remarks ought to, but will not, explode the myth that he’s some sort of conservative ideologue. That myth has served too many people’s purposes, not least those of Ashcroft himself, for too long to be challenged. It is largely based on his term as a U.S. senator, during which he indeed voted with Phyllis Schlafly fairly consistently. His record as governor of Missouri, however, was not that of a hardliner. (Schlafly was, in fact, at loggerheads with him much of the time.) He supported hate-crimes legislation, as he now brags. He also opposed school choice, increased state spending, and made it easier to raise taxes. The St. Louis Post-Dispatch — one of the most liberal newspapers in the country — endorsed him for reelection.

The fears liberals claim to have about Ashcroft as AG are ludicrous. There is no chance that he will lead a crusade against racial preferences at Justice. Does anyone really think he will want to relive this fight two months from now by appointing a conservative to the department’s civil-rights post? Nothing in his record suggests that he would. Nothing in his response to the current liberal campaign against him does, either.

It’s important for conservatives to rally around him nonetheless. For him to be defeated by a dishonest, race-baiting campaign would hurt our political culture and the place of conservatives within it. But an Ashcroft win isn’t going to get conservatives much.

The sadness of Ashcroft’s defensiveness is that it isn’t even winning him anything. Barbara Boxer is just as likely to filibuster his nomination as she was at the start of the week. Ralph Neas isn’t going to let up. And there is an alternative strategy. Ashcroft could denounce the attempt to paint conservatism as per se racist, and accuse his critics of bigotry themselves — against his religion. That would put liberals on the defensive. Scores of liberals have indicated their discomfort with the attack on Ashcroft as racist, and Pat Leahy said that he wanted to make it clear that the hearings were not about whether he is racist. The New York Times editorialized that Ashcroft supporters shouldn’t try to portray him as a victim of bigotry.

Liberals have been pretty explicit about what they don’t want these hearings to be about. All the more reason to make them about nothing else. Instead, Ashcroft is ratifying the idea that a conservative can be attorney general only if he agrees not to be a conservative attorney general.