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Attorneys general have history of collaborating on decisions

John Ashcroft
Attorney General-designate John Ashcroft  

ATLANTA, Georgia (CNN) -- The U.S. attorney general is the chief law enforcement officer for the United States and is responsible for advising the federal government and representing it in court.

A key question attorney general nominee John Ashcroft is expected to answer in this week's confirmation hearings before the Senate Judiciary Committee is how he will deal with laws that are against his moral beliefs.

The former senator supports a ban on abortions except when a woman's life is in danger and opposes affirmative action. As Missouri attorney general, he fought public-school desegregation orders.

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Ashcroft's critics fear the Justice Department will not aggressively enforce these laws if he is confirmed. His supporters point out that as Missouri's attorney general, he opposed the use of public school facilities for religious purposes. That, they say, is evidence he will enforce the law, whatever his views.

H. Jefferson Powell, a law professor at Duke University and the author of The Constitution and the Attorneys General said there are limits on how much influence an attorney general's beliefs will have on policy.

"The attorney general doesn't have a legal option to nullify, in effect, a law by declining to enforce it. Obviously, all attorneys general have to make choices about where to put energy and resources and attention.

"The current attorney general is known for having had a focus on children and issues concerning children. That kind of focus and devotion of attention and energy is something that is obviously and legitimately in the attorney general's prerogative. But no, he or she must enforce the laws that Congress chooses to enact," Powell said.

Pepperdine Law Professor Douglas Kmiec, who served in the Justice Department under Presidents Ronald Reagan and George Bush, said the heads of the different branches of the department report to the attorney general regularly, giving him or her the opportunity to weigh in on certain issues and make important decisions.

Kmiec said that because of the size of the Justice Department, the attorney general must be an excellent administrator simply to stay informed.

"It's very large to administer and to manage. There are over 5,000 lawyers and they are in branch offices, as it were, around the country. The branch offices basically being the U.S. Attorneys' offices plus very sizable divisions... in Washington, D.C.," he said.

The attorney general is the final authority in the Justice Department but he or she must work with division heads, who are also appointed by the president and with career civil servants.

Kmeic said that it is up to the president to decide how much of a role the attorney general will have in the selection process.

"I served Ed Meese and Dick Thornberg as attorneys general. Ed Meese, I think, had the full confidence of President Reagan when he was first nominated so the people who ended up serving as the heads of divisions under Ed Meese were largely recommended by the attorney general and then concurred in by the White House. The ultimate choice of course was the president," Kmeic said.

"Dick Thornberg was less well known by President Bush the senior, or elder. As a result, the White House had a greater influence on who was going to be the head of a particular division in his case. Basically Dick Thornberg was able to pick his immediate personal staff but largely the White House determined who was the head of the civil division, who was the head of the office of legal counsel and so forth," Kmeic said.

Powell said that career attorneys have a strong influence over the Justice Department, even though political appointees make the final decision.

"The department has a lively and strong sense of tradition and even if one was disposed to ignore that, it would be awfully hard to do that in the teeth of all these very smart civil servants who say 'No, this is not what we do, or this is the position the department has always taken,'" Powell said.

Justice Department civil servants usually have served in the department longer than the political appointees and often can point out problems with a plan of action because of experiences they may have had in previous administrations.

"It makes almost no sense to come into a department and ignore the people who have the most experience. And, it's a sure recipe for disaster because it will build up resentment from people who have made the department of justice their life's work and it will make it less possible for the president to get his policies implemented," Kmiec said.

Another concern that Ashcroft's critics have is that he would lobby the president to appoint extremely conservative nominees for federal judgeships, and possibly for the Supreme Court. It is unclear what role he will have in the selection of judges.

"It entirely depends on the administration. The Justice Department, as far back as I am aware, has always had a role, and I assume will always have one, of vetting nominees assembling information, doing that sort of work. Whether the attorney general and her subordinates are actively involved in choices about judicial appointments is going to depend on who the attorney general is and what his or her relationship to the president is," Powell said.

Kmiec said that in the Reagan administration, Meese played a major role in screening judicial nominees, a role that was primarily handled by the White House in former President Bush's administration.

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U.S. Department of Justice

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