BOSTON -- Even some conservatives are embarrassed now by the way Senator John Ashcroft killed the nomination of Ronnie White to be a federal judge. He told his Republican colleagues that Judge White, of the Missouri Supreme Court, had shown "a tremendous bent toward criminal activity." It was a baseless smear.
But it was not just dirty politics. It was dangerous, in a way that casts doubt on Senator Ashcroft's fitness to be attorney general.
Judge White was attacked by Senator Ashcroft because, in 59 capital cases before the Missouri court, he had voted 18 times to reverse the death sentence. In 10 of those 18 the court was unanimously for reversal. Senator Ashcroft hit at cases in which Judge White dissented.
For appraisal of Judge White's record in those cases I rely on Stuart Taylor Jr. of The National Journal, a conservative who is widely respected as a legal analyst. He wrote: "The two dissents most directly assailed by Ashcroft in fact exude moderation and care in dealing with the tension between crime-fighting and civil liberties."
One of the dissents was in a horrifying murder case — the murder, among others, of a sheriff. Mr. Taylor wrote that Judge White's "conclusion was plausible, debatable, highly unpopular (especially among police) and (for that reason) courageous. For John Ashcroft to call it `pro-criminal' was obscene."
In short, a judge who wrote a thoughtful, reasoned dissent in a murder case was told that it disqualified him for a federal judgeship. Think about what that means for our constitutional system.
Judicial independence has been a fundamental feature of the American system for 200 years and more. We rely on judges to enforce the Constitution: to protect our liberties. But a judge who does so in a controversial case is on notice from John Ashcroft that he may be punished. The judge must reject the constitutional claim, however meritorious, or face a malicious smear.
There is a slimy feel to Senator Ashcroft's behavior with Judge White. One of the Republicans who voted against the judge at Senator Ashcroft's urging, Arlen Specter of Pennsylvania, told Judge White the other day, "The Senate owes you an apology." Commentators have urged Senator Ashcroft to apologize, but he has refused.
That same sense of slipperiness is evident in another matter: Senator Ashcroft's role in blocking the nomination of James Hormel to be ambassador to Luxembourg in 1998. Mr. Hormel is gay. Senator Ashcroft, explaining his opposition, said Mr. Hormel "has been a leader in promoting a lifestyle," and that was "likely to be offensive" in Luxembourg.
But 10 days ago, when Senator Patrick Leahy, a Democrat of Vermont, asked whether he had opposed Mr. Hormel because he is gay, Senator Ashcroft replied, "I did not." Why, then, had he opposed the nomination? Senator Leahy asked.
"Well frankly," Senator Ashcroft replied, "I had known Mr. Hormel for a long time. He had recruited me, when I was a student in college, to go to the University of Chicago Law School [where Mr. Hormel was then an assistant dean]. . . . I made a judgment that it would be ill advised to make him an ambassador based on the totality of the record."
After that testimony, Mr. Hormel wrote Senator Leahy that he had not "recruited" Mr. Ashcroft or anyone to Chicago, which needed no recruiting; that he could recall no personal conversation with Mr. Ashcroft then and had not seen him for nearly 34 years. He added that he had asked to talk with Senator Ashcroft in 1998 about the Luxembourg nomination but had gotten no response.
Trying now to appear as someone who will act equitably to all, Senator Ashcroft was not man enough to admit that he had opposed Mr. Hormel because of his sexual orientation. He resorted instead to the false suggestion that he was well acquainted with Mr. Hormel over decades and his "record" was bad.
Supporters of Senator Ashcroft say it is improper to object to him because of his ideology — a president should be free to have cabinet members of whatever ideology he chooses. Even with the greatest latitude for the cabinet, Senator Ashcroft's extreme- right politics make him a dubious choice for attorney general. But what makes him, finally, unfit for the job is that, in Stuart Taylor's words, "A character assassin should not be attorney general."
Copyright 2001 The New York Times Company