(WOMENSENEWS)–As presumptive head of the world’s largest law enforcement agency, John Ashcroft will have a powerful say in issues that are critical to women: pay equity, equal representation in the courts, treatment of battered immigrant women and reproductive rights.
A staunch foe of abortion, Ashcroft is also criticized by women’s rights groups for not supporting women’s employment issues and vetoing a maternity leave law and money for domestic violence programs when he was Missouri governor. As a U.S. senator, he voted against a program that helps women business owners compete for federal highway program business. He fiercely opposed the Equal Rights Amendment.
Ashcroft has promised the Senate Judiciary Committee that he will uphold the nation’s laws, including Roe v. Wade, and will not allow his personal antipathy toward abortion to try to undermine or overturn a woman’s right to choose. But abortion rights–while significant–are not even half the story.
“Part of the reason the media doesn’t talk about the power of the Department of Justice is that it does so many things–literally everything,” said Cornell W. Clayton, a professor at Washington State University and author of two books on the role of the attorney general. “The position has far more responsibilities than similar offices in other countries.”
As head of the Department of Justice, the U.S. attorney general heads the largest law firm in the world, with over 9,000 attorneys. He also controls the operation of the nation’s major law enforcement agencies, including the Federal Bureau of Investigation, the U.S. Marshals Service and the Drug Enforcement Administration.
The budget appropriation of the department for 2001 is $23 billion. The 38 divisions of the department employed 123,779 people in May 1999, according to the U.S. Office of Personnel Management. The staff is larger than the departments of labor, health and human services, housing and urban development, energy and education, combined, and four times the size of the entire federal judiciary.
Enormous Unwritten Discretion to Skirt the Edges of the Law
“The attorney general is nearly as important as Supreme Court justices and will have vast power at his disposal,” said Betsy Cavendish, legal director for NARAL, the abortion rights group, in Washington, D.C.
Many of these powers are behind the scenes, added Bruce Fein, a constitutional scholar who was associate deputy attorney general in the Reagan administration. “There is enormous unwritten discretion to skirt the edges of the law,” said Fein. “He’s got wiggle room to nudge and push the law.”
How the department allocates its resources, advises the president and chooses the cases to pursue will affect women enormously. Several areas, in particular, concern women’s advocates.
The Department of Justice is charged directly with implementation of the Violence Against Women Act, which provides funding for domestic violence programs nationwide. But the funding must be requested and appropriated each year by the Department of Justice, said Nancy Duff Campbell, co-president of the National Women’s Law Center.
“This could affect the funding for battered women’s shelters all over the country,” said Campbell.
The department is also responsible for the collection and analysis of crime statistics, which, depending on the measures are used, affect the national understanding of the prevalence of domestic violence and rape. Ashcroft, when he was governor of Missouri, twice vetoed money for domestic violence programs, according to testimony by Marcia Greenberger, co-president at National Women’s Law Center with Campbell.
The Power to Shape Equal Opportunity for Women
Employment rights of women, including sex discrimination and sexual harassment, are also at stake, said Deborah Rhode, professor at Stanford Law School and chairman of the American Bar Association Commission on the Status of Women. “There is an enormous role in compliance activities and in shaping equal opportunity for women,” said Rhode. “Enforcement priorities are key.” Rhode is also a member of the board of directors of NOW Legal Defense and Education Fund, the publisher of Women’s Enews.
The vigorous pursuit by the Justice Department in documenting unacceptable sexual harassment at Mitsubishi “sent a signal to a lot of companies,” said Rhode. Invisible decisions that can affect women include slowing down or expediting the resolution of cases at the Equal Employment Opportunity Commission.
Abortion raises a dual concern about violence at clinics and the respect for constitutional principles. Janet Reno vigorously protected abortion clinics with federal marshals for a time and the FBI currently lists two men who have committed abortion clinic violence on the Ten Most Wanted Fugitives List: James Charles Kopp, a suspect in the murder of Dr. Barnett Slepian in western New York, and Eric Robert Rudolph, suspect in the bombing of an Alabama abortion clinic that killed a security guard and critically injured a nurse.
The attorney general is charged with the enforcement of the Freedom of Access to Clinic Entrances Act (under which the fugitive Kopp is sought), which was passed in the Clinton administration and deters and punishes clinic violence. According to NARAL, strong enforcement by the Clinton administration resulted in convictions in 15 of 17 cases brought under the freedom of access act.
As a result, the Clinic Violence Project of the Feminist Majority Foundation reported that severe violence at clinics has dropped substantially.
But because his department is subject to little public scrutiny, the attorney general has broad policy discretion to choose which among the numerous federal statutes to emphasize in enforcement, possibly calling certain decisions a matter of resource allocation. “You can’t argue with limited resources,” said Fein, a Reagan administration veteran.
Other concerns arise about how aggressive the Justice Department will be in supporting the constitutional right of women to make decisions about abortion.
Ashcroft Called Roe v. Wade ‘Settled Law’ Without Defining Terms
The attorney general gives confidential advice to the president, Congress and other government agencies. Ashcroft said that he accepted Roe v. Wade to be settled law, despite his extensive and active opposition to abortion. But Fein noted that Ashcroft never said what he meant by settled law.
“It’s left in a twilight zone,” said Fein, leaving open the possibility of arguing that a particular issue has not been fully explored in prior court cases.
To this end, the attorney general has on tap the U.S. solicitor general, who is involved in two-thirds of all cases that go to the U.S. Supreme Court. So influential is the solicitor general in the Supreme Court that some commentators dub the position as “The Tenth Justice.” In the Reagan administration, the solicitor general argued that Roe v. Wade should be overturned.
Also of great concern to women’s advocates is the role of the attorney general in selecting federal judges. “The power over judicial selection is enormous,” said Fein. “I know. I was there.”
The attorney general conducts the all-important initial selection and screening of judicial candidates for presentation to the president. There are over 850 judges on the federal bench who hear federal cases on matters ranging from sex discrimination to the constitutionality of state restrictions on abortion. President Clinton named 332 judges after seven years, including 270 district court judges and 55 appellate judges, according to the Alliance for Justice.
President Clinton’s 100 female judges nearly tripled the number of women appointed by President Bush or President Reagan, it said in a report compiled at the end of 1999.
But as a U.S. senator, Ashcroft “repeatedly blocked the confirmation of highly qualified women to the federal bench,” said Greenberger, who documented six cases in which he obstructed or voted against qualified women attorneys. As governor, he had a dismal record of appointing women, said Greenberger. She noted that the Women’s Lawyers Association in Missouri charged that he asked inappropriate questions about women judicial candidates, including questions about their marital status, the number and ages of their children, their pregnancies and family planning.
The powers of the Department of Justice extend in numerous other directions. “It would take hours to review,” said Fein. Other functions include setting policy for 94 U.S. attorneys across the nation, running the prisons, naming independent prosecutors, and operating the immigration service, which has the power to grant asylum or refugee status to women fleeing desperate conditions.
“It’s difficult for people to understand the myriad ways the attorney general can affect law enforcement and how this filters down,” said Campbell.
Once appointed, the U.S. attorney general can only be removed if fired by the president or impeached by Congress.
Cynthia L. Cooper is a free-lance journalist in New York who writes about reproductive rights and other women’s issues.