Confirmation Bear Traps

By NANCY GIBBS

It is a sacred Washington ritual, a quadrennial attempt at human sacrifice to appease the gods of compromise. At the dawn of each Administration, the President anoints his team, and the confirmation games begin. The interest groups on left and right begin to stir and sniff; the oppo research folders get fattened up for the fight; Senators who will sit in judgment begin voicing "concerns" or "questions" about this candidate's qualifications or that one's paper trail. But almost never--only nine times in Senate history--has a Cabinet nominee been voted down. About the same number pulled out rather than suffer the strip search, or the President withdrew their name, as Clinton did with Zoe Baird when the Attorney General-designate disclosed her infamous nanny- tax problem. In general, confirmation hearings serve as a kind of overture to the First Act of a new President, a preview of all the themes and characters that will share the stage and shape the combat for the next four years. Let the trumpets blare.

By the time George W. Bush finished his shopping last week, he had found a little something for everyone, but especially himself. The diverse Cabinet was designed to build political capital for the fights that lie ahead. By picking both insiders and outsiders, pragmatists and purists, Bush was not only paying off past favors to constituencies but also, he hopes, building goodwill for the future. If he needs to ignore Christian Conservatives when it comes time to wink at China's persecution of Christians, his selection of archconservative former Senator John Ashcroft for Attorney General will help the medicine go down. Business developers got Gale Norton, the Interior nominee known for her eagerness to open wilderness areas to industry. Corporate America, meet Mr. Paul O'Neill, lately of Alcoa. Moderate suburbanites got Christine Todd Whitman, the moderate, suburban New Jersey Governor who will run the Environmental Protection Agency. If Labor nominee Linda Chavez, Reagan's civil rights commissioner and battle-hardened veteran of the culture wars, continues her attacks on affirmative action once in office, Bush can take cover behind the fact that his Cabinet includes fewer white men than any Republican team in history. "Anywhere someone may have a problem, there's a counter to it. It's hard to criticize as a whole," says campaign media strategist Mark McKinnon. "The adults are back in town."

At least that's the way it's supposed to work. But Cabinets aren't confirmed en masse, and Washington has been reshaped by the growth of single-issue constituencies over the past many years. This all but guarantees that Cabinet confirmation hearings become policy shootouts. If one of the more vulnerable targets gets in real trouble and Bush has to ride to the rescue, he may have to spend more political capital defending his picks than he has got by making such wide use of the G.O.P. bench. Worst of all, one of these picks may be a constant draw on his account. Just as James Watt or Jocelyn Elders became poster children for entire Administrations, Ashcroft or Chavez or Norton--the three candidates whose rhetoric and records Democrats consider most extreme--may appear on every Democratic fund-raising letter between now and the 2002 election.

Which has, of course, already begun. Bush is proving to be a uniter, not a divider, all right. But nobody realized that it was Democrats he would be uniting--environmentalists, pro-choice advocates, labor unions and civil rights groups, all of which were huddling together last Friday to pick their targets and plan their attacks. "This kind of outrage in breadth and depth and diversity--I can't remember anything like it," said Hilary Shelton, director of the N.A.A.C.P.'s Washington bureau. But in private, Senate Democrats were clear that, absent some shocking new smoking gun, they weren't likely to actually reject Ashcroft, Chavez or Norton. In a Senate divided evenly between the parties, only a simple majority is required for confirmation, meaning that Democrats would have to achieve astonishing unity (and find one Republican defector) to vote down one of the nominees.

The Democrats' strategy is not risk-free; if they fight hard and lose, they might end up empowering the new President. And with three, possibly four, targets, "they're going to spread themselves too thin," predicts Clint Bolick, a Chavez ally who is head of a conservative legal-advocacy group called the Institute for Justice. "They're not going to take a single scalp because they're going to go after too many."

But Republicans know that some of the nominations might prove costly. Bush's choice of Chavez, with her record of union bashing, means that "we have just blown up whatever inroads we had made with the Teamsters," says a seasoned G.O.P. strategist. Teamsters leader James Hoffa has been flirting with bolting from the Democratic Party and seemed receptive to g.o.p. stroking, but Chavez is a bitter pill for even him to swallow. And thanks to Norton, a longtime advocate for oil drilling in the Alaska National Wildlife Refuge, the strategist says, "we are also now undone with suburban women in the Midwest and California who care about the environment." Other Bush allies complain that by picking Ashcroft, a candidate to lead the Justice Department who offends the African-American community's sense of justice, Bush handed the other side a sure weapon to increase black turnout in 2002 and 2004.

When Bush tapped Ashcroft, on the Friday before Christmas, the former Missouri Senator wasted no time; he got on the phone and began tracking down his Senate colleagues at home. The teetotaling son of a famed Pentecostal minister, Ashcroft, a onetime Missouri Governor so strict that he refused to dance at his own inaugural ball, is the kind of hard-line conservative who makes liberal toes curl. Yet as he reached Senate Democrats like Russ Feingold and his old Yale classmate Joe Lieberman, he was able to elicit warm responses, or at least pledges of neutrality. Feingold called him a "respected public servant with a fine legal mind." New Jersey Democrat Bob Torricelli called him "a very good choice," praised his "sound judgment and high integrity" and said he favored his confirmation.

That infuriated liberal activists, who scrambled to get Democrats to keep quiet and "stop message erosion," as a Senate aide put it, until they had time to dig into Ashcroft's past and shape a grass-roots campaign against him. But that will take some doing; even Ted Kennedy counts Ashcroft as a friend. "He's an able person, and he's got a good mind, and he's a hard worker," Kennedy told TIME. "We've tangled on policy issues," he added, predicting that "there will be sharp questioning over whether he's going to be in the mainstream or on the edges." Ashcroft is a good note dropper who dashes off friendly cards to Republicans and Democrats alike. After his bitter Senate loss to the late Mel Carnahan in November, he sent a page-long handwritten note to Democratic leader Tom Daschle, thanking him for his friendship and help during the previous six years. Ashcroft said his only regret was that they didn't get to know each other better.

Chances are they will now. A quirk in the calendar and Constitution has seen to it that the Democrats will actually be in control of the Senate for the 17 days leading up to Bush's Inauguration. While no final votes will be taken before then, temporary Judiciary Committee chairman Patrick Leahy plans to open hearings on Ashcroft and may even call as a witness Ronnie White, the African-American judicial nominee whose candidacy Ashcroft famously torpedoed in 1999. White, the first black member of the Missouri Supreme Court, was Bill Clinton's choice for a federal district court seat. Ashcroft single-handedly built the opposition that crushed White, charging that his record showed "a tremendous bent toward criminal activity." It was the first time the full Senate rejected a judicial nominee since Robert Bork in 1987.

Civil rights groups cried foul and vowed revenge. "It really was a case of John Ashcroft misleading the U.S. Senate," says People for the American Way chief Ralph Neas. "Ronnie White wasn't anti- death penalty or pro-criminal." White had voted to uphold death penalties in 41 out of 59 capital cases that came before him, his allies noted. In most of the cases where he didn't uphold death sentences, he wasn't alone--the decision was unanimous. And in two of six cases in which White wrote for the majority upholding a death sentence, he did so over the dissent of justices appointed by Ashcroft.

But Ashcroft allies counter that Ashcroft could not ignore a case in which White was the lone vote to overturn a death penalty--the notorious case of Missouri cop killer James Johnson. In 1991 a sheriff's deputy arrived at Johnson's house after Johnson threatened his wife and daughter with a gun. Johnson shot the deputy in the back, then in the head. He then drove to the home of the local sheriff and shot the sheriff's wife five times during a holiday party; she died in front of her family. He wounded another deputy and killed two more outside the sheriff's office before he was captured. His insanity defense was unsuccessful, and the Supreme Court upheld the sentence. But in his dissent, Judge White argued that Johnson had been represented by incompetent counsel.

Ashcroft defenders say it was this decision that swung moderate Republicans against White and led them to reject him for the federal court. They dispute the charge that Ashcroft is a racist, noting that as Missouri Governor he appointed the first African-American judge to the court of appeals and signed into law the holiday honoring Martin Luther King Jr. But he also accepted an honorary degree in 1999 from Bob Jones University, which until recently forbade interracial dating, and defended Confederate leaders as "patriots" in Southern Partisan magazine, a pro-Confederacy publication that he praised for helping "set the record straight."

It is not only civil rights groups that have Ashcroft in their sights. He has always been an ardent abortion foe, so abortion-rights groups view his nomination as "akin to the appointment of George Wallace to be Attorney General in the 1960s," says Rosemary Dempsey, Washington director of the Center for Reproductive Law and Policy. In 1998 Ashcroft sponsored a constitutional amendment to outlaw all abortions except those needed to save the life of the mother. Bush allows for exceptions in cases of rape or incest, but Ashcroft didn't. His proposal defined human life as beginning at fertilization, which women's groups say could have meant that not only abortion but also birth-control pills and IUDs, which prevent development of a fertilized egg, would be illegal. "Bush couldn't have chosen anyone more hostile, more dangerous," says Kate Michelman, head of the National Abortion and Reproductive Rights Action League, "more devoted to taking Roe v. Wade down."

NARAL and Planned Parenthood both mounted unprecedented get-out-the-vote efforts in last year's election. Their state-of-the-art e-mail and phone-bank techniques will now be turned to stopping Ashcroft. But Ashcroft has broad and deep support among social conservatives. More than 180 groups, led by the Free Congress Foundation, have signed on to support him with grass-roots lobbying. Privately, some Democrats say it's useful to rough up Ashcroft, even if just to scare Bush into picking more moderate judges or Justices --and to preclude the chance that Ashcroft might someday land on the Supreme Court. "That's where the endgame is," says Ohio Republican Mike DeWine. "John will be used for the next battle, which is the judgeships."

In some ways, Linda Chavez is more vulnerable than Ashcroft. She doesn't enjoy the professional courtesy that Ashcroft does as a former Senator, and for the moment, activists put her as their No. 2 target. In fact, some Republicans were surprised at Bush's choice for the Labor Department, because it could come at such high cost. That Chavez is a Hispanic woman may not help Bush if many Hispanics and women object to her views. "For the life of me, that doesn't make any sense," says an adviser to the Bush campaign. "She is hated by the constituency they were trying to court with her selection." Chavez, a native New Mexican who does not speak a word of Spanish, is the lead ax wielder against bilingual education.

Chavez started out as a Democrat, working for the party's national committee while her husband worked for the AFL-CIO. She moved on to the American Federation of Teachers, another natural step in the liberal food chain. But as it happened, she found herself growing more conservative. Chavez likes to say that she didn't leave the Democratic Party but that it left her on domestic social issues and foreign policy.

She is no straight-line conservative. Like Bush, she has broken with some in her party by supporting legal immigration. But labor groups are convinced that she poses a threat. "We've never before had a nominee for the Department of Labor who has expressed opposition to some of the key things that are her responsibility to enforce," says Marcia Greenberger, executive director of the National Women's Law Center. Critics fear Chavez will ignore all but the most egregious examples of workplace discrimination, fight against raising the minimum wage and side with Big Business against family-friendly measures like family medical leave and child-care support.

Conservatives are hoping she will throw open the windows at Labor, with her articulate style and political skills. "I don't think we'll see her try to overturn the Executive Order that created affirmative action. That battle's been fought and lost in the '80s," says Bolick, who calls Chavez a "creative conservative" and "kindred spirit." "The law says preferences should be given to the socially and economically disadvantaged. I see her reinterpreting that statute through regulation, trying to go away from race toward class."

The third most tempting target for interest groups is Gale Norton, the former Colorado attorney general who is Bush's pick for Interior. She is being assailed by environmentalists, who now rival civil rights groups for clout on Capitol Hill. Norton, says Sierra Club executive director Carl Pope, "would be a natural disaster as Interior Secretary. Norton is the oil, mining and timber industry's choice." Pope's group is worried that she will move quickly to open more federal land to mining and oil exploration. During a stint as Reagan's associate solicitor for conservation and wildlife, where she was a protege of James Watt, the Interior Secretary enviros loved to hate, she worked to open the Arctic National Wildlife Refuge to drilling, and is expected to do so again. After all, Bush campaigned on the idea. And those who hope the Bush Administration will take global warming seriously may be disappointed to learn that in 1997 Norton co-authored an op-ed piece declaring there's no such thing.

Yet Norton is not without political skills. As Colorado attorney general she badgered the Energy Department to clean up Rocky Flats, the infamous nuclear-weapons waste site. The Energy Committee's Democratic aides have encouraged environmental groups to dig into her past, "but we'll keep an open mind on whether she's the second coming of Jim Watt," says a Senate staff member. The fact is, Bush's nominations have given environmentalists too many targets: aside from Norton, there's former Michigan Senator Spence Abraham, a champion of the gas-guzzling SUV. Bush nominated him to head the Energy Department even though Abraham co-sponsored three bills to abolish it. Then there is Christine Todd Whitman at EPA, who as New Jersey Governor cut the state's environmental budget 30% and favored voluntary compliance with pollution standards instead of corporate fines. Whitman has also had environmental successes in New Jersey, cleaning up the water and preserving open lands from development.

It is likely that the confirmation hearings will reflect the overall tenor of the Senate in this new era. On Friday, Trent Lott and Tom Daschle hammered out a power-sharing arrangement that was approved by both sides. The deal would give the parties equal membership and staffing on the Senate committees--a huge Republican concession, though the G.O.P. would continue to control the chairmanships and, if a committee splits down the middle, have the right to bring bills to the floor for votes. Conservatives grouse that Lott gave away too much. "It's difficult for me to see how two people can drive a car at the same time," says Oklahoma's Senator Don Nickles. As for the Democrats, Daschle will try to keep his members in line--making trouble for nominees in a disciplined, coordinated way. But if Republicans balk and the power-sharing agreement falls apart, Daschle will let the dogs out. And the quadrennial ritual known as confirmation may see some true blood sacrifice.

--Reported by Tamala Edwards/New York and John F. Dickerson, Viveca Novak, Elaine Shannon, Douglas Waller and Michael Weisskopf/Washington

With reporting by Tamala Edwards/New York and John F. Dickerson, Viveca Novak, Elaine Shannon, Douglas Waller and Michael Weisskopf/Washington