John Ashcroft stood in the place of Jeff Sessions the last time a new Republican administration came to power. Like Sessions, Ashcroft was a conservative senator who had been nominated to be attorney general. Also like Sessions, Ashcroft became a top target of Senate Democrats.
Although he was confirmed, Ashcroft drew more opposing votes than any other George W. Bush nominee in 2001. Some of the criticisms of Sessions, a Republican U.S. senator from Alabama, mirror those aimed at Ashcroft: In both cases, Democrats cited the senators’ opposition to liberal African-American judicial nominees as racially insensitive or worse.
One difference between the two nominees is that Ashcroft was more defensive about abortion. In his opening statement at his confirmation hearings 16 years ago, he acknowledged that he thought Roe v. Wade was wrongly decided. But he also said, “I accept Roe and Casey” — another court decision that mostly reaffirmed Roe — “as the settled law of the land.” He continued:
“If confirmed as attorney general, I will follow the law in this area and in all other areas. The Supreme Court’s decisions on this have been multiple, they have been recent and they have been emphatic.”
Sessions, by contrast, left the topic unmentioned in his own opening statement.
In response to questioning by Democratic Sen. Dianne Feinstein about Roe, Sessions allowed that he would “respect it and follow it” as attorney general. But what would it mean for an attorney general to respect and follow Roe?
Ashcroft repeatedly pledged in his testimony that, under him, the Justice Department would not ask the Supreme Court to overturn Roe. “I don’t think it is the agenda of the president-elect of the United States to seek an opportunity to overturn Roe,” he said. “And as his attorney general, I don’t think it could be my agenda to seek an opportunity to overturn Roe.”
Sessions has made no such commitment, and President-elect Donald Trump has said that he wants the court to overturn Roe to allow states to restrict abortion.
The decision is still popular, albeit poorly understood. But the makeup of the Senate gives Republicans less reason to worry about being too out front on Roe. It’s not just that there are two more Republicans in the Senate than there were in 2001 (52 versus 50). The number of abortion foes has risen even more, mostly thanks to the decline in the number of Republicans supporting abortion rights.
Ashcroft’s testimony followed two decades in which Republicans feared that their opposition to abortion was costing them votes. While they know that some abortion-related issues are politically perilous for them — the public is strongly against banning abortion in cases of rape, for example — Republicans no longer have that level of fear.
Public opinion on abortion-related questions has either stayed constant or moved modestly in an anti-abortion direction since 2001. Exit polls suggest that Supreme Court appointments were a bigger issue for conservatives than for liberals. Republicans have enacted restrictions on abortion in many states without facing any serious political backlash.
All in all, then, anti-abortion Republicans are feeling emboldened these days — and Sessions’s testimony reflects their confidence.
Ramesh Ponnuru is a Bloomberg View columnist and a senior editor of National Review. This column does not necessarily reflect the opinion of Minnesota Lawyer or Bloomberg LP and its owners.