Writing footnotes to a law review article can be a tedious business and I sometimes relieve the boredom by listening to background music or information. Currently, that background consists of broadcasts of the confirmation hearings of President’s nominees. I have found them quite enlightening although not in the way that our politicians would like. Some Democratic prospects for 2020 are still caught up in the blinders that doomed Clinton’s campaign this year. Senator Kamala Harris used her time to ask the nominee for the Director of CIA about his willingness to follow LGTB friendly policies for employees at the agency. Senator…
Netflix has produced a new series, called The Crown, about the reign of Elizabeth II. It is beautifully shot and wonderfully acted. The initial series of ten episodes explores the first few years of her tenure and the broad and subtle canvas provides yet more evidence that long-form television is one of the most innovative art forms of the last two decades, generated by the greater competition for viewers from ever more stations and networks.
But what is most impressive about the series is its sustained mediation on an important social idea—that the monarch must recognize that she has two personas—the natural and the political. In the first she can be an individual, but in the second she must follow conventions that lend dignity and stability to the state.
The idea is not itself new. Ernst Kantorowicz’s Two Bodies, one of the greatest books ever about medieval political theory, shows that kingship in the Middle Ages consciously reflected this idea. Monarchy included all sorts of rituals suggesting that political body of the King or Queen was directly connected to the divine and thus provided a source of stability beyond the vicissitudes of ordinary politics. The writers of the Crown seem familiar with this book, because they underscored the transcendent rituals in the coronation of Elizabeth, such as the anointing ceremony.
But while the ideal that body of the sovereign rises above the natural person is not new, The Crown raises the profound political question of whether it can survive in age devoted to individual authenticity and democratic equality.
One of the best disruptions of Donald Trump has been his decision to nominate many officials to the Cabinet who have been enormously successful in business. Such appointees have run major organizations and thus can use their substantial management experience to impose order on the sprawling government bureaucracy. They also bring the perspective of business into the heart of government. A commercial republic can thrive only if, from time to time, officials set about lifting off the dead weights that democratic practices tend to place on the economy.
It is thus disheartening, if not surprising, that many Democrats in the Senate now want to eliminate most of the tax law that facilitates the transition of business people to government. This law permits appointees to an administration to defer their capital gains on the stock they must sell to avoid conflict of interest. It thus encourages wealthy individuals to take government posts, because otherwise they would face an unpalatable choice: Pay a huge capital gains bill or hold on to stock that would create conflicts of interest in their new positions. The legislation greatly aids in eliminating conflicts of interest, because in exchange for the tax deferral, appointees must put their money in treasuries or index funds.
Thus, it is not an interest in good government, but in insular government that is behind the push to change this law.
There is much to be said in favor of a supermajority rule for confirming Supreme Court Justices. As Mike Rappaport and I argue in the Judicial Filibuster, the Median Senator and the Countermajoritarian Difficulty, the result of such a rule will be more moderate justices, less likely to go to any extremes. At a more theoretical level, a supermajority rule will temper the countermajoritarian difficulty — the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches. Judicial review under this confirmation rule would be more likely to impose the long-term limitations on popular government that most people themselves desire.
The filibuster, however, is a weak supermajority rule, because a partisan majority of Senators can change it any time through the so-called nuclear option. Despite my preference for a supermajority confirmation rule, the filibuster is unlikely to survive, if Senator Chuck Schumer has implied, the Democrats are inclined to filibuster Trump’s Supreme Court nominees. Noah Feldman is thus wrong in claiming that it is plausible that the Supreme Court will continue to operate with only eight members.
First, the filibuster for Supreme Court confirmations has been gravely weakened by the previous Democratic controlled Senate’s elimination of the filibuster for other nominations, both for the executive branch and for the lower federal courts.
Jon Huntsman and Joseph Lieberman have written an interesting piece arguing against rule by narrow majorities. They believe rule by the 51 percent leads to polarization, instability, and oppression of minorities. I generally agree, and Mike Rappaport and I have devoted a substantial portion of our careers arguing that supermajority rule requiring consensus for government action, particularly at the federal level, is often better than narrow majority rule.
But even worse than enactment of coercive regulation by a bare majority is that by a minority. And the modern American administrative state encourages minority rule. The basic reason is that the President is likely to represent more the median voter of his party rather than the median voter of the nation. His nomination was secured by satisfying these voters. To be sure, his election and reelection depends on assembling a broader coalition but citizens appear to vote at the national election more on the state of the economy and a few very high visibility policies than a President’s overall administrative record.
As a result, an administration’s regulatory agenda will often represent the preferences of only a minority of the nation. Sadly, administrative law gives the President and his appointees substantial discretion to follow such preferences. Broad delegations allow for the choice of a wide range of policy points, including those on the more extreme ends of the spectrum.
It has been a disorienting year for classical liberals. The presidential candidate of the more classically liberal of the two major parties took some positions wildly at odds with classical liberalism, like opposition to freer trade, enthusiasm for government intervention in corporate decision making, and hostility to some civil liberties. He won the Presidency in part because of some of those positions.
But then the same candidate announced the nomination of a substantially better cabinet from the classical liberal perspective than those Hillary Clinton would have appointed. It is through these generally decent appointees that he must largely govern, not by twitter.
He also shows every sign of following through on his commitment to appointing a justice sympathetic to enforcing the constitution as written and thus better implementing a charter broadly reflecting the classical liberalism born in the eighteenth and nineteenth century, although not of modern libertarianism. Once again the relative success of classical liberalism is made even clearer if potential nominees are not evaluated against a standard of utopian perfection, but compared to the result-oriented justices(s) that Hillary Clinton promised to appoint.
Here then are a few classical liberal resolutions for this strange era.
A group of law professors, now more than a thousand in number, has written a collective letter opposing Jeff Sessions’ nomination as Attorney General. The letter’s list of particulars against him is long—from his position on environmental laws to civil rights laws—as well as allegations of racial insensitivity that figured in his failed nomination to be a federal district court judge thirty years ago.
Of course, these law professors have every right to oppose Jeff Sessions as citizens, but they are clearly here writing as legal scholars, noting their position as law professors at the start of the letter and signing with their institutional affiliations.
What is notable, however, is the lack of any scholarly argument in the letter. There is no analysis of why Sessions’ positions are wrong as matter of law or policy.
It does not take a sophisticated legal realist to recognize the hopelessness of any claim that the status of Christmas as a state or federal holiday violates the Establishment Clause. Justices don’t want to be the greatest grinches of all time.
And, in any event, under current law it is clear the current Christmas holiday is constitutional. It has a secular purpose and context as well as a religious one—most importantly being the anchor of the holiday season that more than any other boosts consumer spending. Evaluating Christmas as a holiday is a bit like evaluating Christmas displays themselves for constitutionality. A secular context, like enough dancing reindeers or increased GNP, can redeem the religious content. It may seem odd to a layman but the more crassly commercial Christmas becomes, the more it becomes legally safe as a holiday.
But instead of thinking what the current Establishment Clause doctrine means for the Christmas holiday, we can turn the question around and ask what the Christmas holiday means for the meaning of the Establishment Clause.
During the Restoration, Charles II traded jibes with his courtiers. None was bolder than the Earl of Rochester who recited this poem in the monarch’s presence:
Charles wittily replied that the last two lines were very true: his words were his own, but his actions were those of his ministers.
Could Donald Trump turn out to be the reverse of Charles II? Many of his tweets have hardly been wise, but his appointments to the Cabinet have been largely good ones for classical liberalism and in any event almost universally men and women of substance. Just read this lovely essay written by a Democrat about Rex Tillerson, Trump’s nominee for Secretary of State, and his service as a juror. You will have the measure of a man who has the measure of the world.
And these appointments have enormous importance for government because the President, like Charles II, must govern largely through his cabinet secretaries and agency heads rather than by Twitter.
In an op-ed in the New York Times, two Harvard political scientist professors, Steven Levitsky and Daniel Ziblatt, have sounded the alarm about democracy in America. It is in danger they say mostly because democratic institutions are no longer backed up by the “guardrails of democracy”—deep norms of “partisan self-restraint and fair play.” Sadly, their analysis of the decline of these norms is itself both partisan and shallow. It is partisan because they note only Republican breaches of such norms, when Democrats have engaged in breaches as well. Its shallowness in turn comes from their partisanship. They blame a particular political party rather changes in the nature of our polity, like the growth in the power of government and decline of federalism.
The partisanship of Levitsky and Ziblatt is striking. They claim that one of the informal norms is that legislative votes about matters of “extraordinary importance,” like impeachments, be bipartisan and Clinton’s impeachment by Republicans was not. But the only previous impeachment of the President—that of Andrew Johnson—was also a party-line vote. The norm that creating new entitlements—also actions of extraordinary importance—should be bipartisan, however, is a much more established one: Social Security, Medicare and Medicaid all had bipartisan support. Yet President Obama enacted the Affordable Care Act without the support of even one moderate Republican such as Senator Susan Collins of Maine.
These Harvard professors decry the failure to vote on Merrick Garland, which they characterize in hyperbolic terms as “stealing” a Supreme Court seat.