Until last month, when Attorney General John Ashcroft knuckled under to Big Tobacco, the disasters predicted by his critics were mainly occurring under the radar. Charges of racism, homophobia and pro-life extremism had receded or been replaced by tut-tutting over his Bible-reading sessions and his support for an individual right to bear arms. To be sure, Ashcroft's major crime-control proposal, which called for harsh federal sentences for even minor gun-possession offenses, would have a disproportionate impact on minorities. His refusal to halt executions while he studied the causes of racial disparity in federal death penalty prosecutions barely masked his enthusiasm for the ultimate punishment. And he was dragging his heels on providing federal marshals to protect an abortion clinic doctor who had already been shot and on implementing a consent decree that would impose far-reaching change on the scandal-ridden Los Angeles Police Department.
But burying the enormous federal lawsuit against Philip Morris, RJ Reynolds et al. is a warning that Ashcroft is not only backing away from a federal role in curbing corporate greed but also planning reversals in other areas.
In general, Ashcroft has not invoked the hard-right ideology for which he was known as a US senator and governor of Missouri, presumably to allay suspicions that he got his job on the basis of a "confirmation conversion." The selection of experienced federal prosecutors like Richard Mueller to head the FBI, which Ashcroft has moved to rein in, and Michael Chertoff to lead the criminal division seems designed to avoid butting heads with critics who saw him as an extremist. Even the way he rationalized settlement negotiations in the tobacco case--claiming it was a weak case, rather than finding it a politically unpalatable assault on free enterprise--suggested an effort to conceal contradictions in the assurances of moderation he made to the Senate. His caution is part of the pattern that is emerging in Ashcroft's leadership at Justice: soothing rhetoric and superficial approaches to high-visibility matters; delay and obstruction on more complex and controversial issues; and contorted definitions of pressing problems--gun violence, police misconduct--to justify a right-wing vision of DOJ priorities.
The decision to try to settle the tobacco case indicates that even without overt, full-scale efforts to transform the legal landscape, Ashcroft can whittle away rights and regulations that define the fragile and partial social progress of this country in the twentieth century. As the Administration's most prominent emblem of religious fundamentalism and laissez-faire economics, he is now--sometimes on his own, sometimes following the dictates of the White House general counsel and associates--moving the agenda on civil rights, police misconduct, abortion, sentencing, drug and gun enforcement, and corporate (non)regulation predicted by his critics. Whether he succeeds will depend on his wiliness, the power of the network of lawyers who share his ideology and support his efforts, and the effectiveness of progressive forces in Congress and elsewhere in fighting back.
Ashcroft's influence will reach the DOJ troops in the trenches through a phalanx of loyalists on the frontline. Personnel choices, orchestrated from the White House with Ashcroft as the concertmaster, have been masterful; appointees (some are technically still candidates, having not yet been confirmed by the full Senate) are both demographically and ideologically correct and often have worked together, shared conservative mentors and pursued similar career tracks. Some are adherents of the influential right-wing Federalist Society, whose goal is "reordering priorities within the legal system," a phrase from the society's mission statement that seems to mean seeing the Constitution as a text of rules bound by what are said to be the original meanings of the Framers, thus giving conservative courts the opportunity to enforce the cramped ideologies of the late nineteenth and early twentieth century. (For readers interested in this subject, I recommend the Institute for Democracy Studies briefing paper "The Federalist Society and the Challenge to a Democratic Jurisprudence.")
Among Ashcroft's lieutenants:
- Theodore Olson, the new Solicitor General, argued on Bush's behalf before the Supreme Court against a full count of Florida votes and has been a close associate of impeachment prosecutor Ken Starr. A former president of the Federalist Society's Washington, DC, legal division and, until April, a member of its national board of visitors, Olson also joined forces with the Center for Individual Rights, another conservative legal center, to represent the plaintiffs in a successful challenge to the affirmative action program of the University of Texas. Since he's the chief trial lawyer for the United States, his characterizations of federal law in arguing before the Supreme Court are likely to carry particular weight with the Justices. And he may be deployed as the ideological messenger to the Court, as appears to be the case in his support of Ohio's plea to review a lower court's rejection of its school voucher program, which has largely been used for religious schools.
- Larry Thompson, the new Deputy Attorney General and, from 1982 to 1986, US Attorney in Atlanta, is a respected African-American litigator who testified for Supreme Court Justice Clarence Thomas in his tempestuous confirmation hearing. Through most of the 1990s Thompson served on the advisory board of the Southeastern Legal Foundation, which describes itself as "a public interest law firm advocating limited government, individual economic freedom, and the free enterprise system in the courts of law and public opinion," and which has brought a number of suits challenging local governments' minority set-aside programs. He shares with Ashcroft the view that federal death penalty prosecutions are free of racial bias.
- Ralph Boyd, a former federal prosecutor from Boston and an African-American who breezed through his confirmation hearing to head the civil rights division, was a reputedly effective gang and gun crime prosecutor; he's also been an adviser to the American Sports Shooting Council, a defendant in a 1999 suit by Boston against gun manufacturers that Boyd called "preposterous." His experience in civil rights is very limited.
- Viet Dinh, a Vietnamese immigrant (he wrote a moving account of his family's perilous journey to the United States in a 1993 Op-Ed piece in the New York Times) and Georgetown Law Center professor, has been chosen as Assistant Attorney General for Policy Development. Described by a colleague as a "conservative hotshot," he worked with former Senator Alfonse D'Amato on the Whitewater investigation and is close to active members of the Federalist Society. In addition to being the department's point man for judicial selection, he will have major responsibility for developing its priorities.
DOJ managers who oppose abortion rights, despise most regulation of business and reject measures to promote racial equality have their work cut out for them. Bill Clinton and Janet Reno, though hardly crusaders, moved the department toward greater protection of the interests of women, consumers and people of color. In general, these initiatives enjoy strong public support. So if Ashcroft is to discard the legacy of the recent past in civil law enforcement, it will have to be primarily through the exercise of discretion on matters that can be made to look like neutral, institutional choices--such as when to appeal a judgment and how vigorously, and what resources to assign to a problem.
Take the protection of victims of the violent wing of the right-to-life movement. While Ashcroft has made no secret of his disdain for reproductive choice, he has no alternative but to prosecute vigorously at least the most heinous crimes committed in the name of the movement that he generally supports. But he still has lots of wiggle room in enforcing the Freedom of Access to Clinic Entrances Act. Betsy Cavendish, legal director of the National Abortion and Reproductive Rights Action League, worries that the "threats prong" of the legislation--the conduct that triggers a federal decision to prosecute--will be weakened, that the government will be less likely to step in before menacing words or actions become actual violence. She's also concerned that the government will not appeal cases that it loses at the trial stage. (Janet Reno appealed all such decisions.) Ashcroft initially said he would not continue the task force created by Reno to coordinate federal efforts to prevent abortion clinic violence but backed down during the confirmation process when faced with strong resistance by women's and medical groups. The task force may, however, be toothless. "It's now much harder to talk to career DOJ people; they have to get clearance just to speak with us," says Vicki Saporta, executive director of the National Abortion Federation, the principal association of abortion providers. "Reno put the resources of the FBI into investigations of violence and provided the protection of federal marshals for our members, whose lives are at stake. We are calling on this Justice Department to do the right thing."
Ashcroft must also decide soon whether the Justice Department will take a position on two University of Michigan affirmative action cases. In strikingly contradictory opinions, federal judges have ruled both for and against the consideration of race in admissions decisions. Reversing the Clinton Administration's support for the university in these cases could be awkward. President Bush, after all, said all the right things about choosing a diverse Cabinet; why isn't what's good enough for the Cabinet good enough for a college or law school? In addition, the Supreme Court recently refused to reconsider a lower court's rejection of a challenge to an affirmative action policy at the University of Washington, providing a hint that race may not be ruled out as one consideration in admissions decisions in higher education. On the other hand, with a Solicitor General who is attorney of record for the plaintiffs in State of Texas v. Hopwood and an Attorney General who, as a senator, voted against special funding for minority-owned businesses, switching sides to support the plaintiffs is certainly possible.
Also worrisome is the prospect that this Administration will pull its punches on police misconduct. Ashcroft has stated that racial profiling is "wrong" but supports legislation mandating a national study of racially motivated traffic stops only if local police departments can opt out of collecting the data--a loophole waiting to be exploited. And he may be unwilling to use federal muscle to rein in abusive cops. Since the 1992 Rodney King beating, federal legislation has authorized civil suits against police departments that demonstrate a "pattern and practice" of conduct that curtails constitutional rights, paving the way for a court order or settlement that can potentially bring about longer-term change than criminal penalties for individual cops. Although Ashcroft has opened an investigation of the Cincinnati police department--where gunning down unarmed blacks long predated the recent violent protests over yet another death at the hands of police--a Justice Department official asserts that "this is not a Department of Prosecution" and pledges to "work cooperatively" with police departments. Lawyers in the civil rights division report that Bush lieutenants interviewing them during the transition expressed skepticism about "pattern and practice" suits. Besides, the Attorney General thinks racial profiling and police violence are merely the actions of a few bad apples, rather than evidence of systemic rot. Mark Rosenbaum, legal director of the Southern California affiliate of the ACLU, worries about Justice inaction on the widespread corruption and abuse uncovered in the Rampart Division of the Los Angeles Police Department; Federal District Judge Gary Feess is still waiting for input from Justice on the choice of a monitor for the consent decree. "Every day that it goes unsigned it has a credibility problem, and the police culture in the LAPD becomes more entrenched," Rosenbaum says.
Anger in black communities about their treatment by police is equaled only by what African-Americans see as the theft of their political power by the Bush presidential campaign. But there is little evidence that the DOJ is prepared to be even as vigilant as Clinton and Reno were on voting rights issues. While Ashcroft is hiring eight more attorneys for the voting rights section of the civil rights division, few observers predict that, even with the US Commission on Civil Rights finding of widespread disfranchisement of black voters in Florida in the 2000 presidential election, DOJ will act aggressively to insure that flawed election systems and malapportionment in Congressional districts do not dilute minority votes in future elections. (The DOJ response to the commission's recommendation that it investigate possible violations of the Voting Rights Act of 1965 has been predictably noncommittal, given that the commission's two conservative Republican members dissented vigorously from the report's findings.) Elliot Mincberg, legal director of People for the American Way, notes that the department has not become involved in any of the lawsuits alleging disfranchisement in the 2000 election, investigating only charges of voter fraud in St. Louis rather than the charge by local black leaders that voters were discriminatorily excluded. Holding state legislators' feet to the fire to create Congressional districts for the 2002 elections that will provide minority voters with the opportunity to elect candidates of their choice would require bucking the federalist bent of Bush's most adamant constituency, an unlikely prospect.
When it comes to the handling of most federal crimes--at least those in which the accused are poor and powerless--the new team at Justice should find it relatively easy to promote its view of the world. The Clinton Administration was so willing to concede the get-tough game to Congressional opportunists that it's hard to imagine it could get much worse under Bush. As a senator, Ashcroft refused to address the hundredfold disparity between penalties for offenses involving crack and powder cocaine; so did Clinton. Clinton supported ineffective and discriminatory mandatory-minimum sentences, as Ashcroft does; the Clinton Administration incarcerated thousands of minor offenders for long periods. As Martin Guggenheim, an NYU law professor who specializes in juvenile justice and children's rights, puts it, "No creative voice came out of Justice on any crime matter in all eight years of Clinton."
The Attorney General's approach to gun violence attempts to distract critics from his opposition to gun control and deflect the charge (reinforced by his announcement that gun dealers could destroy background checks on a purchaser shortly after the sale is made) that he is a tool of the NRA. He proposes to expand a pilot project in Richmond, Virginia, "Project Exile," in which local and federal law enforcement cooperate to prosecute local gun crimes as federal offenses with mandatory-minimum sentences of at least five years. But Richard Aborn, a past president of Handgun Control (but, as a former Manhattan prosecutor, no bleeding-heart patsy), says Ashcroft's approach to gun violence is incomplete and unresponsive to law enforcement needs. "He's only talking about the back end," Aborn says. "Prevention is as important as prosecution. If you want to protect the lives of law enforcement officers on the street, you have to do whatever you can to restrict guns."
Furthermore, both criminologists and law enforcement officials doubt Project Exile's claims of effectiveness in reducing homicide and armed robbery. Richard Kern, director of the Virginia Criminal Sentencing Commission, maintains that the only evaluation of the program so far is grounded in nothing more than anecdotes and the probable coincidence that violent crime and gun crime went down in the Richmond area. He points out that crime declines began before Exile went into effect and occurred everywhere in the state, and that other policy changes with a greater reach--like the elimination of parole--might explain the drop in crime. Others raise the usual objections to mandatory minimums; a White House task force considering the expansion of Exile is hearing from judges who say it robs them of discretion and from federal prosecutors who don't want to deal with what are mostly small-potatoes cases that they say should be a state concern.
As a supporter of states' rights federalism and constructive engagement with errant police departments, Ashcroft might be expected to agree. But here bedrock religious commitment, combined with fealty to his far-right constituency, trumps other considerations. As he sees it, the issue is individual moral responsibility. Now he has an ally to help him realize his vow to escalate the war on drugs: new drug czar John Walters, who was Bush's father's chief of drug enforcement.
But the zealotry of Ashcroft and Walters may be out-of-date. The drug policy reform movement, while fragmented, no longer operates on the political fringe and may force more progressive policies than those embraced by Clinton. Change is in the air. Right-wing libertarians, Republican governors like New York's George Pataki and even Chief Justice William Rehnquist are softening on the use of mandatory minimums for minor offenses (read, low-level drug crimes). Says one critic, "These must be the last two guys in America who don't believe in treatment."
One of the most sensitive areas for the Ashcroft team, given the Bush Administration's business-friendly focus, is its handling of corporate cases. The Clinton Administration was hardly eager to use federal law to rein in the market. But it did go up against the tobacco, airline and high-tech industries, though sometimes with reluctance. Ashcroft's decision on the tobacco case suggests that he will find ways to back off on other threats to corporations, which made multimillion-dollar contributions to Republican candidates in 2000.
With the tobacco case, there were many hints that the Bush Administration would retreat. Bush criticized it during his campaign and last September a federal judge rejected the claim that the government was owed damage payments for the money it has spent to treat tobacco-related illnesses. She narrowed the suit to the charge that the companies had engaged in racketeering for decades as they conspired to hide from the public evidence of the medical hazards of tobacco and the addictiveness of nicotine. When Ashcroft took over he questioned the competence of the litigation team and used a budget shortfall, which could have been addressed, as cover for subverting the case.
As for the other big-ticket civil case, the antitrust suit against Microsoft, by refusing to break up the company the DC Circuit Court has made the option of a settlement much easier for DOJ. But settlements can be very punitive, and the suit will be harder to abandon than the tobacco case. Senator Patrick Leahy, chairman of the Judiciary Committee, favors vigorous antitrust enforcement, and Senator Orrin Hatch, the ranking minority member, is a Microsoft critic. Furthermore, political lines are not clearly drawn on this one. "There are many traditionalist Republicans who understand the need for antitrust in a market economy, who accept it as a centrist way to go between populism and a totally unregulated economy," notes Bert Foer, president of the American Antitrust Institute.
The appellate ruling is not easy on Microsoft. It labels the company a monopolist in violation of federal law and mandates reform. Although Charles James, the new antitrust chief, who also served Bush père, expressed doubts last year about breaking up Microsoft, antitrust experts give him high marks for professionalism. In addition, eighteen state attorneys general, thirsty for the blood of Microsoft, will be watching closely. A settlement that curbs Microsoft's anticompetitive behavior--going beyond Microsoft's announcement that it would allow computer makers and users to remove its browser from the operating system--seems likely.
The major changes Ashcroft is making behind the scenes suggest that he is shedding the centrist program of the last Administration in favor of the go-for-broke agenda of far-right adherents. Blocking those efforts is probably the best that can be expected, and it will take concerted and focused action to do it. Congressional Democrats will have to demand federal responsibility for studying racial profiling and forcing states to end it. Prochoice and women's groups will have to insist that the federal task force on preventing abortion clinic violence, started by Reno, continues to be effective. Civil rights organizations will have to lobby hard to preserve Department of Transportation regulations that are now subject to the Supreme Court standard that racial classifications must be narrowly tailored to further compelling governmental interests. What's needed to preserve even these modest victories and to achieve equally modest advances is unapologetic activism on a scale that competes with the narrow intensity of the far right.
Diana R. Gordon is senior research scholar in the doctoral program in criminal justice at the City University of New York.
© 2001 The Nation Company, L.P.