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Too Conservative?

In any administration there are Cabinet positions and then there are Cabinet positions. But only one Cabinet position - the position of attorney general - cuts a swath across virtually every aspect of American life.

From gun laws to securities violations, from abortion rights to environmental oversight, from civil rights concerns to drug intervention, the attorney general is the nation's prosecutor, charged with ensuring that the Justice Department in all its forms and ways enforces federal laws, rules, and regulations.

And, like every other prosecutor in the country, the attorney general must decide when to fish and when to cut bait, when to use precious resources investigating and prosecuting, and when to save those resources for another day. The position, therefore, affords its occupant a tremendous amount of every-day, on-the-ground discretion.

That's why George W. Bush's nomination of self-proclaimed conservative John Ashcroft, the former Missouri governor and senator, has created such a stir among liberal interest groups - and why Ashcroft's nomination hearing is likely to be the most contentious in years.

Many Democrats argue that the position of attorney general is one of the few which cannot be led by an ideologue since so much discretion vests in the office. Many Republicans say that's hogwash - that even an avowed advocate of conservative causes like Ashcroft can put aside his partisanship to enforce the laws as they currently are written.

I'm not so sure. If any Cabinet position begged for a non-ideological, non-partisan, non-controversial figure, it is the position of attorney general. Take the Freedom of Access to Clinic Entrances Act, passed in 1994. The federal law was designed to protect people - doctors, nurses, patients, etc. - who either work in or visit abortion clinics. But Ashcroft is an avowed opponent of abortion rights. He supported the Hyde Amendment, which prohibits the use of federal funds for abortion services, and he has been at the fore of the fight to prohibit certain late-term abortions, a procedure its opponents call "partial birth abortion." In fact, he apparently believes that abortion should be outlawed even in cases of rape or incest.

There's obviously nothing particularly right or wrong with those beliefs, of course - millions of Americans share them. But the interest groups who are fighting Ashcroft's nomination - and the millions of people they represent - have a right to be concerned that Ashcroft won't be willing to vigorously defend the many abortion rights those groups have long fought for.

For example, will someone so opposed to abortions ensure that abortion clinics receive the federal protection they need from marshals and other federal law enforcement officials? Or will Ashcroft cut that budget, shift the money over to causes in which he believes, and thus leave those clinics more vulnerable? Remember, as a prosecutor with a limited budget, Ashcroft woud be well within his discretion to shift emphasis from one legal area to another. But using his discretion in this way wouldn't necessarily make his decision right or proper or fair.

Ashcroft also is against affirmative action, against federal hate-crime legislation, against the federal ban on assault-style weapons and against desegretation mandated by federal judges. Again, there is nothing particularly right or wrong about those views - millions of Americans hold them. But Democrats this week are within their rights to ask, pointedly and repeatedly, whether someone who obviously feels so strongly about these and many other issues can within the constraints of human nature be a neutral enforcer of our laws.

Will the attorney general vigorously enforce the assault weapons ban, or will he advise lower-level prosecutors to back off? Will he call off the dogs when it comes to environmental litigation against polluters because he doesn't believe in a strong Environmental Protection Agency? Will he push to end the government's case against Microsoft because he believes that the nation's anti-trust laws ought to be more lax? These are valid questions because rarely, if ever, has this country seen an attorney general-designate hold such widely publicized and polarized views on so many topics likely to come before him if he gets the job.

There is one more general concern folks may have about Ashcroft's proximity to the office of attorney general. As a lawyer, it is one which cuts close to home for me. The fellow seems to have a expressed disdain for federal judges. As a senator, he once called them the "robed, contemptuous intellectual elite." He also apparently buys into the shibboleth that it is "appalling" that federal judges would or could or should be "activists" on the bench.

Again, reasonable people could hold these particular views. But people who do hold such views perhaps shouldn't be placed into the nation's highest law enforcement office. If he hates federal judges so much, in other words, perhaps he shouldn't be required or permitted to work so closely with them.

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