Ashcroft Nomination Represents Important Opportunity To Debate the State of Civil Liberties in America

WASHINGTON — As a non-partisan organization that does not endorse or oppose nominees for cabinet offices, the American Civil Liberties Union does not take a position on whether John Ashcroft should be confirmed by the Senate as Attorney General. What the ACLU can — and will — do is analyze and vigorously publicize Ashcroft’s record on the important civil liberties issues that face the nation today.

We believe the decision to confirm or reject a nominee for the Attorney General of the United States provides a unique opportunity to engage in a discussion on important civil rights and civil liberties issues and on our federal government’s willingness to protect and defend those rights.

Senator Ashcroft’s record has not been one of total hostility to civil liberties. He led efforts to protect the right to communicate privately by supporting free use of encryption and voted repeatedly to protect free speech rights in the context of campaign finance reform. That said, however, the vast majority of Sen. Ashcroft’s policy positions indicate that he fundamentally disagrees with core tenets of the Bill of Rights and Constitution as they are currently applied.

For instance, in his one term as a U.S. senator, Ashcroft co-sponsored or supported no fewer than 11 constitutional amendments. Amending the U.S. Constitution is always a serious undertaking. It should be reserved for those rare instances where there exists a compelling need to establish rights that cannot be secured by other means.

Three of the proposed constitutional amendments that Sen. Ashcroft supported would have radically reduced rights that Americans now enjoy. First, he proposed an amendment to overturn Roe v. Wade and eliminate the right to chose abortion, even in cases where a woman is the victim of rape or incest. Second, he supports a constitutional amendment to make it a crime to express yourself by “desecrating” your own flag. Third, he supports a so-called victim’s rights amendment that would fundamentally alter criminal trials by diminishing due process rights, creating unfairness and as a result, make it easier for innocent people to be convicted of crimes.

Other than campaign finance reform, Sen. Ashcroft’s record also shows a startling hostility to a broad array of First Amendment rights. Most notably, he has repeatedly argued in favor of tearing down the legal wall that separates church and state, and he has demonstrated contempt for free speech rights in his consistent support for major new censorship schemes for the Internet.

Repeatedly, Sen. Ashcroft has used the bully pulpit of the Senate floor to extoll the virtues of religion in public life. But there is a difference between extolling religious values and amending the law to allow particular religious views to be foisted on the American people.

Sen. Ashcroft is, for example, a fervent supporter of so-called “charitable choice” — taxpayer funding of religious organizations in a manner that violates the Establishment Clause (the separation of church and state) and weakens civil rights laws.

In addition, all of the Charitable Choice provisions that have recently passed, as well as those now pending in the 107th Congress, attempt to exempt religious organizations from complying with civil rights laws, specifically Title VII. The effect of this could create a significant setback for civil rights enforcement in this country.

For example, a particular religious organization that receives federal funds for drug treatment or job training could discriminate against hiring a person who was in an interracial marriage or a person who just believed that interracial marriages were acceptable under the rubric that it was antithetical to the institution’s religious tenets to do so. In fact, there are a surprising number of Bob Jones-like religions that still harbor such beliefs. Furthermore, Charitable Choice could be interpreted to allow organizations to discriminate on the basis of pregnancy status, gender and sexual orientation, as long as doing so is part of their religion’s “teachings and tenets.”

It is our belief that as Attorney General, Senator Ashcroft would proactively advocate to expand Charitable Choice and will interpret these laws in a manner that gives religious organizations an exemption from many anti-discrimination laws.

Indeed, it has long been Sen. Ashcroft’s assertion that religion should be advanced by the federal government even if it means that tax dollars are being used to subsidize discrimination. This is of enormous concern to the collective civil rights community and to all who believe in the enforcement of civil rights law.

As ACLU founder Roger Baldwin famously said, “no fight for liberty ever stays won.” And we should not forget that most of what we now recognize as constitutional rights were established in practice only within the past 40 years.

The record of struggle for our hard-won rights and liberties speaks for itself: the dreams denied, the lives lost, the promises betrayed. In considering President-elect George W. Bush’s nomination of John Ashcroft to be Attorney General, members of the United States Senate must ask themselves if Ashcroft’s policies will build on our nation’s struggle for liberty or reverse our hard-won gains.