Legitimacy and the Democrats
(Posted on October 31, 2001)
Michael Astrue, a moderate Republican whom I know slightly, today withdrew his name from consideration as head of the Food and Drug Administration. He was known to be President Bush’s top choice for the position, but Edward Kennedy, chairman of the Senate Labor Committee, announced that he would refuse to hold hearings on an the prospective nomination. Kennedy doesn’t accuse Astrue, a former general counsel of the Department of Health and Human Services and current chairman of the Massachusetts Biotechnology Council, of harboring abhorrent right-wing opinions. His “disqualification” is that he has worked for Biogen, and the Senator opposes allowing anyone with a background in the pharmaceutical industry to be in charge of the FDA.
Even by Kennedy standards, that is so frivolous an objection, akin to refusing to let anyone who has ever been a taxpayer take charge of the IRS, that one cannot help suspecting that other motives are present. Kennedy’s recalcitrance in fact fits into a pattern that Senate Democrats have followed since they became that chamber’s majority. They are making it as difficult as they dare for the President to staff the Executive Branch with his own appointees, far more difficult than it was during previous periods when different parties controlled the Presidency and the Senate.
Moreover, the Democrats’ tactics rely heavily and increasingly on procedural maneuvers to block nominees who almost certainly could win on the Senate floor. Senator Kennedy’s handling of the potential Astrue nomination was particularly heavy-handed. He lost the last time that he let his committee vote on a controversial nominee (Eugene Scalia for Solicitor of Labor). This time he would not even allow a vote. It is doubtful that such an experienced and politically mellow nominee would draw a dozen nay votes, but only one vote in the right place is needed to veto him.
The tools that the Democrats are using have always lain at hand, of course, and Mr. Dooley declared long ago that “politics ain’t beanbag”. Why, though, are weapons that were formerly employed only rarely and against nominees who faced strong opposition in the Senate as a whole now being deployed against smaller and smaller targets? I have a pessimistic hypothesis that has the misfortune of fitting all of the data.
While the Constitution vests executive power exclusively in the President, so that George W. Bush could, in principle, personally give orders to any administrative department on any subject, the federal government’s ramified powers have to be exercised through millions of civil and military servants. Only a few thousand of those millions serve at the pleasure of the President. If he is to have any real authority, and if the government is to display any degree of energy, he must have wide freedom to select men whom he can trust and who agree with his principles.
The federal government can run on its own, without presidential direction, but anyone who has spent any time as a bureaucrat (and I will confess to having filled that role for a few years) knows that nonpolitical government employees, left to their own devices, shy away from controversy, bold initiatives and changes of course. It’s quite right that they should hold that attitude; without it, the executive would dissolve in perpetual civil war. But it is not an attitude that can solve problems or deal with crises. Disrupting presidential appointments is tantamount to rendering a key branch of government unable to carry out its responsibilities in full. Is there anyone on the ideological ground to the right of Susan Sontag and the left of Pat Buchanan who believes that now is the time for ineffective government?
Senators Kennedy and Daschle and Clinton and their comrades are surely aware of these elementary truths. Even in placid times, their Senate forebears have let the President pick his own team, reserving the right to criticize that team’s performance. What is so different now that they must hamstring America’s chief magistrate in a time of national peril?
The answer, I fear, is that they do not regard themselves as hindering the duly elected President but as keeping power from the hands of a usurper. Democrats’ attacks on the legitimacy of the Bush Presidency have been less strident since September 11th, but, within the core of the Democratic Party, they were, up till that day, vociferous and unrelenting. It is doubtful that those who proclaimed them then have changed their minds now.
On the surface, the reasons for this extraordinary bitterness are the extreme closeness of the last election, the prolonged legal fight that followed it and the abrupt way in which the contest was brought to an end. But when one looks deeper, it is arguable that those factors were the occasion, rather than the cause, of the conviction that George W. Bush is not “really” President and is not entitled to the prerogatives of office.
Crises of legitimacy typically spring from the use of force or fraud to overturn constitutional procedures. It would have been illegitimate for Governor Jeb Bush to arrest the Florida Supreme Court or for state election officials to add votes arbitrarily to their favored candidate’s total or for either side to bribe or intimidate members of the Electoral College. It was not illegitimate, in the normal sense of the that term, for courts to issue decisions on cases within their jurisdiction and properly brought before them. Their decisions may have been wrong. Courts are frequently wrong. Courts frequently declare that other courts have been wrong. Questions of law are slightly more open to dispute than proofs of geometric theorems. Nonetheless, it is not illegitimate for judges to blunder. Even less is it illegitimate for them to decide difficult cases according to their lights.
To derive the conclusion, “The outcome of the 2000 election was illegitimate, and extraordinary measures are proper to thwart an illegitimate administration” from the proposition, “Bush v. Gore was not legally the best decision that the Supreme Court could have made” is rational only if one believes that all erroneous court decisions are invalid and can properly be resisted. Not even Terry McAuliffe, I suspect, would defend that premise, nor can I imagine that many Democrats would have embraced it had they not already regarded a Bush victory, however achieved, as fundamentally improper.
As further evidence, there is the curious fact, examined at length in an article in the current issue of The Wilson Quarterly (Peter Berkowitz and Benjamin Wittes, “The Professors and Bush v. Gore”), that the legal community's loudest critics of the Supreme Court’s resolution of the election dispute have advanced only superficial criticisms and have not bothered to address major points in the majority and concurring opinions. As the authors put it, “the scholarly critics generally seemed to regard the truth of their assertions as too obvious to require sustained evidence or argument, if they considered evidence or argument necessary at all.” To support this conclusion, they look in detail at the pronouncements of three of the most distinguished anti-Bush constitutional law professors - Bruce Ackerman, Cass Sunstein and Ronald Dworkin - and show that none of them grapples seriously with the issues. Consistently they misstate the Court’s holdings, ignore its rationale and substitute vituperation for analysis.
It looks like these eminent professors were convinced that Bush v. Gore was wrong - and not merely wrong but, in their unanimous opinion, the worst decision that the Supreme Court has ever made - before they thought carefully about its merits. That conviction, formed in advance of its nominal cause, suggests that they, like less analytical Democrats, regarded a Bush Presidency as illegitimate a priori.
My hypothesis, then, is that a large segment of the Democratic Party - probably not a majority but a substantial minority including many of the party’s leaders - not only believes that George W. Bush has no right to be President but would hold to that belief even if he had won unquestioned majorities of the electoral and popular votes. The two possible alternative theories, that very few Democrats question the Administration’s legitimacy or that their doubts were produced by the circumstances of the election, could be true but are hard to reconcile with the facts. If the Senate Democrats viewed President Bush as a “real” President, they would allow him the same latitude in staffing his administration as his predecessors enjoyed. If belief in Bush’s illegitimacy were not a predisposition antedating the election, it could not have been created simply by a judicial decision that the election losers believed to be mistaken.
Supposing that I am right, the implications for our constitutional order are ominous. We may be in a situation parallel to the last days of the Roman Republic, when no faction would accept the outcome of any political process that resulted in defeat for itself. That left only force as an arbiter and only dictatorship as a road to peace.
If we want to dwell on parallels, we can observe that Rome was the only superpower in the world that it knew, so superior to all adversaries that it could fight a major civil war in the middle of the war against its principal foreign foe Mithridates. Being a superpower guaranteed safety from outside threats, not from those that the ruling class created from within.
To predict civil war in America would be alarmist, but there are many bad things short of civil war. One can envision a period of Thucydidean statis, when a government enfeebled by internal strife employs its strength ineffectively, perhaps feeding the strife by its failure. The upshot could be chronic, low level conflict permeating society, until we resolve it as the Roman Republic did or fail to resolve it at all and disintegrate, becoming, as Al Gore once mistranslated the famous motto, “out of one, many”.