Free Expression

Advice and Consent[*]

by Marty Jezer

Read the Rules, Then Complain

Article 2, Section 2 of the U.S. Constitution mandates that the Senate give "advice and consent" to presidential appointments. [**Full text appears below. Ed.] The first presidential nominee rejected by the Senate occurred in 1789, during the administration of George Washington. Senators have been using their constitutional prerogative ever since. [***See precedent for the Senate to revoke its consent once given. Ed.] So why are Republicans complaining at Democratic opposition to John Ashcroft, George W. Bush's nominee for Attorney General, and Gail Norton, his choice for Secretary of the Interior?

Ashcroft's supporters, especially, have no reason to bemoan the treatment he is getting from Senate Democrats. As Senator [R-Mo.], Ashcroft vied with Jesse Helms as champion obstructor of President Clinton's appointments. If you were gay, pro-choice on abortion, too strong an advocate of civil rights, but not strong enough a proponent of the death penalty, Ashcroft opposed you.

Republicans Don't Trust Their Own

Ashcroft and Norton have claimed that they would put personal ideology aside and uphold the law. But there are many ways to uphold the law: with vigor and passion or with empty words and perfunctory nods. For example, there are laws against drugs and there are laws against many manifestations of white-collar crime. Yet, while our government pursues its war on drugs, it dithers in enforcing existing laws concerning unsafe products and working conditions, environmental pollution, antitrust, and the rights of workers to organize labor unions. Cabinet appointees have great leeway in selecting the laws they choose to enforce.

Both Ashcroft and Norton hold views that are extreme, even by the standards of their own party. Norton's appointment, for example, is opposed by Republicans for Environmental Protection ("REP"), an organization that claims Teddy Roosevelt as its inspiration and counted Barry Goldwater as a member. In publicizing its opposition (for text, see, REP denounced Norton for having "embraced the views and leaders of those organizations that want to open our wildlife refuges to polluting development, stymie the recovery and protection of endandered species, and squander the gifts of public lands bequeathed to the American people by previous generations." According to REP, "GOP pollsters say that a majority of Republicans don't even trust their own party to take good care of the environment." The nomination of Norton, they say, to put it mildly, "does not help."

Norton's Oxymoron: Corporate Self-Regulation

Norton opposes government policies to protect the environment, believing that corporations should be allowed the privilege of self-regulation. Republicans, with their mania for law and order, never have a problem imposing government regulations on private conduct, in the bedroom and out, but corporations, despite a shabby record of environmental protection, should be allowed to police themselves.

It's no wonder the vested interests support Ms. Norton. In 1998, she founded Colorado Republicans for Environmental Accuracy (CREA). Among its sponsors were the National Mining Association, the Chemical Manufacturers Association, and the National Coal Council. Lobbyists for Texaco, Shell and a large coal company have served on its steering committee. Those are the interests which Norton, as Secretary of Interior, will represent.

Even Most Christians Reject Ashcroft's Beliefs

Ashcroft's extremism covers wider ground. His thoughts about rape should, in themselves, disqualify him from public office. According to Ashcroft, women who are raped should not be allowed an abortion, but must carry the rapist's baby to term. Unable to cdistinguish an act of violence from an act of love, he is unfit to hold any public position of moral authority. Ashcroft's claim to be an advocate of small government and of family values is also rife with hypocrisy. If he had his way, a government ban on abortion would take precedence over the beliefs and feelings of the rape victim and those of her family.

Ashcroft claims that his politics derive from his Christian religion, as if this made him unique. As the political positions of the different denominations show, the great majority of Christians reject Ashcroft's beliefs on abortion and many other issues.

Arms to Uphold Personal Prejudices

Ashcroft has been a consistent opponent of gun control and a major recipient of NRA ["National Rifle Association"] money. (He seems to think that owning an automatic weapon reflects 'family values' and the teachings of Jesus.) [****Defenders of private firearm possession rely heavily on the Second Amendment to the U.S. Constitution (1791). See text below. Ed.] His great skill, like that of George W. Bush, is raising money from corporate interests. His big donors include the rent-a-car, oil, gas, and automotive industries, whose legislative agendas he has pursued with passion. Not surprisingly, he is an absolutist in his opposition to campaign finance reform, opposing not only the moderate McCain-Feingold bill but also all efforts to tighten the rules for disclosure. His efforts, as Attorney General of Missouri, to undermine a court-ordered school integration plan for St. Louis have been documented. Ashcroft has testified that, as U.S. Attorney General, he will uphold the law of the land, but when ordered to uphold the Supreme Court's decision on school integration, he chose to uphold his personal prejudice instead.

Mandate vs. Anti-Mandate

Even if Bush is tacitly accepted as President, he needs to be constantly reminded of the limits of his mandate. While the outcome of the presidential vote is controversial, there is no question that the right wing was thoroughly defeated. Combine the votes of Gore and Nader with those of Bush and Buchanan and it is evident that the center-left trounced the center-right by a decisive margin in both the electoral and popular vote. Bush campaigned as a "compassionate conservative" and was successful in keeping the Republican right wing silent. (Neither compassionate, nor conservative, that wing is reactionary.) Now the rightists demand their pay-off and Bush has delivered the first installment with Ashcroft and Norton.

Let Him Have It

The right wing's grab for power, which began with their attacks on Bill Clinton that predated Whitewater and Monica Lewinsky, has no legitimacy and should not be tolerated. (And shame on Republican moderates for supporting Bush's appointments in violation of their own past records of social tolerance and environmental concern). In acceding to right-wing demands, Mr. Bush is begging for a political battle. He should get it.

Copyright © by Marty Jezer, 2001. (Used with permission. This article appeared first in the January 19 issue of the Brattleboro (VT) Reformer.)

Journalist Marty Jezer is a Vermonter and the author of the political history, The Dark Ages: Life in the United States, 1945-1960. He has also written biographies of Abbie Hoffman and Rachel Carson, and the memoir, Stuttering: A Life Bound Up in Words. He grew up in the Bronx and lived in Brooklyn, Staten Island and the East Village. Email: Web site: at


[Our internal subtitle for this article is "He Should Get It All Right." Ed.]


[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [emphasis supplied]


Could the Senate vote to confirm Ashford and/or Norton and then reverse itself? That issue came before the Supreme Court in 1932 (United States v. Smith 286 U.S. 6) and was there held to turn on the Senate's own rules:

No fact is in dispute. The sole question presented is one of law. Did the Senate have the power, on the next day of executive session, to reconsider its vote advising and consenting to the appointment of George Otis Smith, although meanwhile, pursuant to its order, the resolution of consent had been communicated to the President, and thereupon the commission had issued, Smith had taken the oath of office and had entered upon the discharge of his duties? The answer to this question depends primarily upon the applicable Senate rules. (U.S. v. Smith, 286 U.S. 6, at 30, emphasis supplied).


Amendment II (1791)

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.