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Don't Let Them 'Bork' Aschroft by Robert Bork   Message List  
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TRANSITION 2001

Don't Let Them 'Bork' Aschroft
Phony charges must not go unanswered.

BY ROBERT H. BORK
Tuesday, January 16, 2001 12:01 a.m. EST

It's beginning to feel like homeweek with all the old crowd--People for the American Way, National Organization of Women, AFL-CIO, National Abortion and Reproductive Rights Action League and scores of other leftist groups and senators--gathered round to bring down and pick the bones of another presidential nominee. It's enough to make a man nostalgic.

This time it's John Ashcroft, the man George W. Bush would like as his attorney general. And it is easy to see why. Mr. Ashcroft has an impeccable resume: attorney general of Missouri, governor and senator. That is a combination of law enforcement and political experience that should qualify him not only to survive but to thrive in Washington. The problem is getting to Washington.

The charges being leveled against Mr. Ashcroft are, at least so far, spurious. Because he is opposed to abortion, some Democratic senators express "concern" that he might not enforce the laws against violence directed at abortion clinics. A great many Americans are pro-life. Are all of them disqualified from law-enforcement positions? Are all faithful Catholics ruled out as attorney general? Because he is opposed to most gun control laws, does that mean that anyone who doubts the efficacy of such laws, as there is very good reason to do, is open to the charge that he would not enforce existing laws?

These objections are nonsense. Has anybody found that, as attorney general of Missouri, Mr. Ashcroft refused to enforce laws that he would have opposed as a legislator? This is the old canard that conservatives are especially likely to replace law with their personal policy preferences. When I was solicitor general, the official who represents the United States in the Supreme Court, I regularly argued for the validity of laws about which I had the gravest personal doubts. It seems to me that conservatives, given their respect for institutions and the rule of law, are more likely than liberals to enforce the law as it stands.

Janet Reno is the poster girl for the liberal deformation and ignoring of plain law. One hears not a word of complaint from Democrats about that. Indeed, when Ms. Reno was nominated, it was known that she was pro-abortion, pro-gun control, and pro-affirmative action, yet no Republican questioned her willingness to enforce the law and that was a mistake. She has been the model of a political attorney general, not only flatly refusing to obey the statutory command to appoint an independent counsel to investigate the campaign finance scandals implicating her president and vice president but actually opposing in court the independent counsel she appointed.

If Mr. Ashcroft had anything of equal gravity on his record, he should not be confirmed. But it would have been refreshing if any of the leftish senators, such as Patrick Leahy, Tom Daschle and Chuck Schumer, who are questioning Mr. Ashcroft's qualifications, had said a single word about Ms. Reno's shameful performance in office.

I would have found it refreshing if any of these gentlemen had said even that Sen. Edward Kennedy's string of lies about me (in "Robert Bork's America . . . women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution," etc.) was perhaps just a bit over the line. None did. I was told, even by some liberals outside Congress, not to respond because the charges were so grotesque that they would do me more good than harm.

And therein lies a lesson for this nominee: Do not assume that wild and obviously false accusations do no harm. They do and, unrebutted by the administration, they become a drum beat that eventually impresses much of the public. Clement Haynsworth, Richard Nixon's perfectly respectable nominee for the Supreme Court, told me that the charges flung at him were so vitriolic that he didn't recognize himself and found himself saying when he read the papers, "This man won't do!" Mr. Ashcroft needs to demand, and to get, a vigorous rebuttal from the president-elect's staff.

If the confirmation hearings are prolonged and vicious, the main effect, as Mr. Ashcroft may find, is that you become extremely tired to the point of exhaustion and prone to mistakes. Not serious mistakes but, for example, failure to take the time to rebut in full every slanderous allegation. And it becomes impossible to read the newspapers or watch television network news, which are extremely hostile to conservative nominees and become part of the baying pack. Accusations are aired in full, rebuttals only selectively in order to appear to confirm the allegations.

Though I was not much in favor of the idea, my wife insisted that we read a Psalm each morning during my confirmation battle. My favorite became the third, which referred to the Lord as smiting my enemies upon the cheek and breaking the teeth of the ungodly. I don't think that was the lesson she wanted me to learn.

Mr. Ashcroft will hear the ever-popular charge of "racism" from his enemies within and without the Senate. That there is no fact to support that charge will deter his opponents not one bit. He did, after all, oppose the confirmation of one black judge to a seat on a federal court of appeals. The fact that he voted to confirm many other blacks will be overlooked, as will be his record in Missouri and his wife's teaching at the predominantly black Howard University. Still, as I learned, the persistent charges of hostility to women and minorities, without a shred of proof, begin to take their toll.

The truth is that liberals these days are the primary exponents of character assassination and the politics of personal destruction. It is important to the country, as well as to the conservative cause and the incoming administration, that they not be allowed to get away with that again. Having lost Linda Chavez, Mr. Bush can ill afford another defeat of a nominee. That would signal to the liberal-left that they have a good chance of turning his administration into a disaster area (especially of defeating any Supreme Court nominee who might interpret rather than rewrite the Constitution) and electing a Democratic House and Senate in 2002 and a Democratic president in 2004.

This time the lies should be thrown back in the left's face. A resolute and aggressive defense can confirm Mr. Ashcroft and gain momentum for Mr. Bush.

In thinking of the parallels between my experience in the confirmation process and today's battle, I realize that I have one asset the attorney general-designate can never earn: suitability as a verb. Nobody will ever say, "Let's ashcroft him."

Mr. Bork, a former federal appeals judge, is a senior fellow at the American Enterprise Institute and a professor at the Ave Maria School of Law in Ann Arbor, Mich.

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January 16, 2001
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   dow jones



Tue Jan 16, 2001 7:05 am

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