Ashcroft Among the Senators: Justification, Strategy, and Tactics in the 2001 Attorney General Confirmation Hearing

On February 1, 2001, John Ashcroft was sworn in as Attorney General of the United States. As the head of the Department of Justice, Ashcroft took an oath to ensure that the laws were faithfully executed. As a Senator, Ashcroft had voted against many of the laws that he was now supposed to enforce. He had suggested a constitutional amendment to ban abortion, but he was now to enforce Roe v. Wade (1973). He had voted for opening protected areas to resource exploitation, but he was now to enforce environmental regulations. Ashcroft had given an interview to Southern Partisan magazine ("Senator Ashcroft," 1998) and a speech at Bob Jones University (Ashcroft, 1999), both of which had come under fire for allegedly racist and discriminatory stances, but was now supposed to oversee civil rights enforcement. It seemed that his past views were out of line with these laws. Yet, the Senate confirmed Ashcroft to enforce them. Ashcroft was not confirmed in ignorance of these tensions. In fact, a barrage of questions from Democrats on the panel marked the confirmation hearing and supporting arguments from the Republicans bolstered Ashcroft. The confirmation hearing seems to have fulfilled the role demanded by the Constitution. Although the President is given leeway, the Constitution does not grant unlimited authority in naming Cabinet officers. Article Two states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... public Ministers and Consuls ... whose Appointment are not herein otherwise provided for" (Art 2. [section] 2). While the President is allowed to choose the Cabinet, the Senate has been willing to use its powers to block some appointees. Recent examples include John Tower for Secretary of Defense under George H. W. Bush and Zoe Baird for Attorney General under Bill Clinton. Ashcroft could have joined them. Ashcroft, however, was confirmed. The vote was close. 58 Senators voted to confirm Ashcroft, 42 did not. Yet, before the vote was taken, several major newspapers had concluded that the hearings were moot; Ashcroft had enough support to gain confirmation (see Dewar & Eggen, 2001; Hedges, 2001; Jackson, 2001; Johnston, 2001; Kaufman, 2001; Sherman 2001, for example). The Republicans, had there been a strict party-line vote, would have been able to confirm Ashcroft. When Georgia Senator Zell Miller announced his support for Ashcroft, the Republicans knew they would win without using Vice President Dick Cheney's tie-breaking powers. Despite the fact that the Republicans were guaranteed to win, the Democrats did not give in. Rather than simply allowing the Ashcroft confirmation, the Democrats used this forum to express their disapproval. In the tradition suggested by Madison, Hamilton, & Jay (1989), they used the factional divisions within the Senate to express the minority view. And, as noted by Calhoun (1992) in the debates over slavery, the expression of minority views in the Senate is important as it prepares the ground for political opposition in the future when the minority will be decisive in the final outcome. The least optimal option for the opposition is capitulation. Although the Democrats could cave in and agree not to oppose the nomination, they would lose any possible advantages to be gotten by voicing disagreement. Alternatively, the 42 votes held by the Democrats could be used as a powerful weapon, the filibuster. The filibuster is a bludgeon; it stops all debate on everything when used. Filibustering, however, is also a "least useful" option for the Democrats as it stops all business and increases the appearance of partisanship. Rather than capitulating or filibustering, the use of the hearing to voice opposition allowed the Democrats to express their disapproval of nominating someone as conservative as Ashcroft in such an important position. Yet, they had to avoid the view that they were voting on nothing but the basis of Ashcroft's "Republican" label. …