They Blew It, Big Time

(CBS)  Commentary on the Senate battle over Attorney General John Ashcroft by CBSNews.com's Dick Meyer.

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They'll be sorry.

Democrats and their interest group allies, that is. They'll be sorry they couldn't find some way to derail the Ashcroft nomination.

They'll be sorry when they start voting on Bush's judicial appointments. They'll be sorry when they start voting on Ashcroft's top lieutenants. They'll be sorry when they start seeing Attorney General Ashcroft implementing policies and advocating positions that they don't even get to vote on.

It took a Republican, Senate Majority Leader Trent Lott, to make explicit the Democrats' very best reason for battling Ashcroft: "What they're aiming for is to try to say to President Bush, 'Don't send us a conservative nominee to the Supreme Court,' which he will do."

Sure he will, now that Ashcroft has made it through the barbed wire. Democrats aren't going to get a bigger ideological target than John Ashcroft — and they missed him.

The main reason for that is their misguided reluctance to fight the nomination on straightforward ideological grounds; that is, on substance and philosophy. To be fair, the Senate as a whole has suffered under this confusion for quite a while. The reigning view of the Senate's "advise and consent" function is that it is legitimate to oppose a presidential nominee for almost any reason other than political philosophy. Any whiff of scandal, personal impropriety, or rule breaking is enough to spike a nominee. No amount of genuine disagreement is.

There is, however, nothing at all in the Constitution that limits congressional "advise and consent" to non-ideological, non-substantive matters. As Sen. Patrick Leahy, D-Vt. noted, the Constitution doesn't say "advise and rubber stamp." The president is entitled to nominate; the Senate is entitled to reject. There is no constitutional or other limitation on what the proper grounds for confirmation or rejection are.

So we now have the ironic, probably absurd, situation where profound disputes about central issues like abortion, gun control, and civil rights aren't considered appropriate grounds for opposition. But where petty and distant violations of rules concerning domestic employees routinely harpoon appointees. Ashcroft in; Chavez out.

From the Bork Battle on, this has been one of the prime causes of scandal inflation. It has made the confirmation process one of the most dishonest and phony rituals in government.

Harvard political philosopher Michael Sandel wrote in The New York Times: "The reluctance to grapple openly with ideological differences has driven disagreement underground, turning confirmation proceedings into a sordid search for personal imperfections that can destroy nominees without engaging their views."

Exactly.

According to the etiquette of kabuki confirmation, a nominee can defintively disarm substantive attack by vowing under oath to enforce the law regardless of any past advocacy.

There is one key player in the Ashcroft confirmation fight who has not bought in to this: John Ashcroft.

When he was in the Senate, Ashcroft was not shy about voting against appointments he disagreed with, and he wasn't one to accept "confirmation conversions."

For example, he opposed the selection of Bill Lann Lee for the top civil rights post in the Clinton Justice Department because of the issues, notably affirmative action. When Lee told Ashcroft and the Senate Judiciary Committee that he would, no matter what his past positions were, faithfully enforce the law, Ashcroft didn't buy it.

That's fine. But Ashcroft should be held to exactly the same standards.

But the "presumption of confirmation" is so widely accepted that timid politicians fear that opposition to high-profile nominees will make voters mad at them. This year, they also fear that fighting too hard on Ashcroft will be taken as incivility or excessive partisanship at a time when people want a "uniter, not a divider."

Thus a liberal Democrat like Sen. Russ Feingold of Wisconsin voted for Ashcroft, he said, for symbolic reasons, to offer the new administration an "olive branch." But principled opposition is not incivility or blind partisanship.

Another liberal Democrat, Chris Dodd of Connecticut, said he would vote for Ashcroft because, "There is a record here of going after people too hard, in too unfair a manner ... I will not engage in the same form of payback politics."

But voting against a nominee for attorney general because of his positions on abortion, gun control, and civil rights is not "payback politics." It's policy.

Aschroft's opponents may have been doomed from the start. Maybe they never had a prayer of getting Republican votes this early in a Republican administration, short of finding some pseudo-scandal. But if they had held on to all 50 Democratic votes and forced Vice President Cheney to cast the tiebreaker, they would have greatly helped what became their primary purpose in opposing John Ashcroft, influencing who President Bush tries to put on the Supreme Court.


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