Sen. John Ashcroft toned down his rhetoric but maintained his
attack on federal judges this week at the first of three hearings
Ashcroft hopes will have a "therapeutic" effect on the judicial
Some critics worry that Ashcroft's therapy amounts to little
more than intimidation of judges whose rulings aren't conservative
enough for critics from the right.
"They don't like the fact that Clinton is president and has the
power to appoint federal judges," says Sen. Dick Durbin, D-Ill., a
member of the judiciary committee. "They're out to stop these
nominations, and any excuse will do."
Ashcroft, R-Mo., began his public campaign with a speech in
March, when he referred to "renegade judges, a robed, contemptuous
intellectual elite" and talked of "judicial despotism." At a
hearing Wednesday, he was less strident and took pains to say that
his criticism of "judicial activism" isn't limited to liberals or
"I am committed to trying to eliminate judicial activism
without regard to whether my party appointed the judges or whether
I like the outcome in a particular case as a policy matter," he
For the first time, Ashcroft cited two conservative rulings
where he says judges went too far. In one case, a judge in Oregon
struck down a ballot initiative that provided for a right to
doctor-assisted suicide. Ashcroft called the initiative "a
positively terrible idea" but said he didn't think the judge should
have "displaced the will of the people."
The second example was a Supreme Court ruling last year in
which the justices struck down the punitive damages a jury assessed
against BMW. The court found limits in the Constitution that
Ashcroft has sought in legislation.
"The people have lost because rather than being able to decide
issues for themselves, they have had the issue decided for them by
a handful of justices who simply saw their own policy preferences
reflected . . . and imposed those preferences on the rest of us,"
the senator said.
Ashcroft is the chairman of a judiciary committee panel on the
Constitution. He plans to hold two more hearings this summer.
Most of the rulings that Ashcroft and witnesses cited as
improper "activism" tended toward the liberal side. They included
U.S. District Judge Russell Clark's court-ordered tax increase to
pay for school desegregation, judges' delay of voter initiatives on
affirmative action and immigration in California; and the judicial
takeover of state prison systems that judges found to be
Especially poignant was the testimony of Patrick Boyle, a
Philadelphia police detective whose son, also a police officer, was
killed by a car thief. The thief had been released from prison
after a court-ordered limit on the number of inmates in the prison.
"Without limits, judges can make their own law and run
important areas of our government," Boyle said. "The kind of
separation of powers I learned about in my civics class many years
ago seems to have disappeared. …