ASHCROFT THE ACTIVIST

Opponents of John Ashcroft's nomination to become attorney general have
been turning over every rock in sight, hoping to find some outrageous
statement, some political skeleton, some evidence that he is unfit to be
the nation's chief law enforcement officer.

His supporters have been doing their best to prove that the nominee is
technically qualified for the job and is, moreover, a decent man who would
enforce the law fairly.

The whole thing seems to be missing the point. I have never doubted
Ashcroft's decency, never questioned his legal abilities, never worried
that, in a particular case, he would be unfair.

But the attorney general is not just the nation's chief cop. He is also the
chief influencer of our law-enforcement policy.

It is from that office that decisions are made on which laws to enforce,
and how vigorously; what discretion ought to be exercised, and in which
direction; how law-enforcement resources should be deployed, and with what
emphases. Bland reassurances that Ashcroft would "enforce the law fairly"
aren't much help.

To take a simple example, what does it mean to enforce America's drug laws
"fairly"? Does it mean locking up anybody caught with illegal drugs, as the
law permits? Does it mean focusing resources on major traffickers, as the
law also permits? Does it mean shifting resources from enforcement to
treatment -- or the other way around? Does it mean confiscating more and
more assets of people found in violation of the drug laws? The law allows
all these things -- allows as well the disparate sentencing for powdered
and "crack" cocaine and the well-documented racial disparity that results
from it.

To promise to enforce the law without talking about which policies would be
emphasized or changed is to say nothing at all. Absent a president with
strong feelings on the matter, law-enforcement policy is largely left to
attorneys general to decide. Some have gone against discrimination, some
against organized crime, some against monopolies and trusts. Some have
followed public sentiment, and some have gone their own way. Most of the
time, it hasn't mattered much. So why do so many non-conservatives believe
it will matter so much this time?

The answer is in Ashcroft's record of advocacy. He has fought with
extraordinary vigor for positions that are well outside the American
mainstream -- on gun control, on abortion, on juvenile justice, on the
death penalty. I don't mean to deny that his position on all these issues
might be shared by a significant minority. I say only that his views are
unusually conservative. He is, I think it fair to say, an ideologue. And
when you take someone who has been advocating views that are well away from
the political center and put him in charge of law-enforcement policy, it's
not enough to say he'll "enforce the law."

Ashcroft signaled his own understanding of this point when he was asked
whether he would try to undermine the 1973 Roe v. Wade decision on
abortion. He said that for the solicitor general (who ranks under the
attorney general) to petition the Supreme Court to have another look at Roe
would undermine the Justice Department's standing before the court.

He was, as I read his response, saying he could make the attempt, though it
might be impolitic to do so at this time.

Is it unfair to oppose Ashcroft, an experienced lawyer, out of fear that
his personal and religious views would influence his role as attorney general?

As Sen. Patrick Leahy (D-Vt.) reminded us the other day, it is a question
Ashcroft himself has answered. When Bill Lann Lee was named by President
Clinton to head the Justice Department's civil rights division, Ashcroft
fought to deny him the job.

He had no doubt concerning the nominee's professional ability, Ashcroft
said at the time, but Lee's beliefs (on affirmative action) "limit his
capacity to have the balanced view of making judgments that will be
necessary for the person who runs the division."

Why can't the same assessment apply to the person who will run the whole
department?