Constitutional Hardball

The New York Times' editorial begins Thursday morning with this: [1]

The Justice Department is a disaster zone. It should be the embodiment of America’s commitment to the rule of law, but it has been contaminated by partisan politics. The nation’s top lawyers may have broken the law, and even may have sent innocent people to jail, to advance the interests of the Republican Party. To replace Alberto Gonzales, President Bush must appoint an attorney general who is above politics, and the Senate should only confirm a nonpolitical lawyer of unquestioned integrity.

Isn't it pretty to think so? But there are very good reasons to assume that the Bush administration will not do it.

They are currently floating the name of Ted Olsen, one of the roughest partisan players in Washington, a man who made his bones in the Reagan administration by authoring a 1982 memo outlining a plan to "neuter the ability of Congress to enforce its oversight powers against the executive branch" [2], — the same theory which is being used today to justify keeping the congress from enforcing a contempt proceeding against Harriet Miers and Karl Rove. (The 1982 plan was conceived by current white house counsel Fred Fielding and current Supreme Court chief Justice, John Roberts, incidentally. The movement zombies never die.)

Olsen would be a typical choice by this president, designed not only to install partisan operatives in jobs that normally require high standards of personal integrity and independence, but to infuriate many Democrats (despite what this article [3] says.) This has the double effect of getting the person they want in the job while rendering the Democratic Congress publicly impotent before their base once again. It's all good.

But it's more than that. Having one of the most notorious Clinton character assassins running this Justice Department during the presidential election which will quite possibly feature Sen. Hillary Clinton would send a very strong signal that the partisan manipulation of the voting machinery will continue apace. Theodore Olsen, it cannot be forgotten, argued the case for the president in Bush vs Gore. Whether they actually game the system or not, it would seem that they are intent upon making it seem that they will.

Why would they do that? It seems counterintuitive that they wouldn't go out of their way to try to re-establish credibility after the the revelations of the U.S. Attorney scandal. Any other president would be searching for a bland consensus candidate who could oversee the department and quietly take care that the investigations don't run out of control as the administration winds down. It shouldn't be too difficult to find someone with GOP loyalty who doesn't have a reputation as a partisan hitman. And yet they float the name of Ted Olsen, quite seriously it seems. (As The New York Times editorial points out, all the names that have been floated are as partisan as they come.) They are playing Constitutional Hardball.

What is Constitutional Hardball?

When Dick Cheney said that he came into office determined to "restore" the prerogatives of the president [4], he was admitting that he was playing what Harvard Law professor Mark Tushnet calls "constitutional hardball" (pdf [5]), a term of art that describes the actions or series of actions taken by partisan actors to fundamentally change the underlying assumptions that govern our common understanding of how our system works:

A shorthand sketch of constitutional hardball is this: It consists of political claims and practices — legislative and executive initiatives — that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.³ It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold.

——

³ By this I mean the "go without saying" assumptions that underpin working systems of constitutional government. They are had to identify outside times of crisis precisely because they go without saying. (An alternative term would be conventions.)

Tushnet explains that this has succeeded at various times in the past, most significantly during the early years of the nation, when "conventions" had hardly even been formed, and during times of change such as after the civil war and during the great depression. If it works, the other side plays on the new terms and a new sense of equilibrium is found and a new set of conventions are adopted, such as what happened during the long period after the New Deal. Tushnet suggests that contrary to the theories of some other constitutional scholars, this is not always a "constitutional moment" but rather a longer evolution.

In the case of the conservative movement's game of constitutional hardball, it's been going on in fits and starts since the late 60's when Nixon tried and failed to embed the imperial presidency as a working convention when it was revealed that he indulged in criminal behavior. It continued during the Reagan years, once again failing when the Iran-Contra scheme was revealed and created a public scandal. Vice Prewsident Dick Cheney has been working overtime to win this game of hardball where his two predecessors failed since the year 2000. Throughout the modern conservative era, this has been an ongoing quest, never quite fulfilled but coming closer each time.

Tushnet explains the mechanism:

Political actors can play constitutional hardball with substantive principles. Proponents of a constitutional transformation will propose legislation that pushes the envelope of existing constitutional doctrine. The proposed statutes will not be obviously unconstitutional, because constitutional hardball consists of actions that are plausibly defensible under existing constitutional doctrine. But, they will signal that their proponents have a substantially different understanding of government's role than had seemed settled. And, importantly, the proposals, if enacted, might have the effect of enhancing the political strength of the coalition seeking to change the constitutional order.

So what does it look like to lose a "game" of constitutional hardball?

The high-stakes characteristic of constitutional hardball shows that hardball is an element of the more general phenomenon Jack Balkin and Sanford Levinson identified as partisan entrenchment. According to Balkin and Levinson, large-scale changes in deep institutional arrangements occur through a process of partisan entrenchment. Balkin and Levinson focus on partisan entrenchment in the courts. "When a party wins the White House, it can stock the federal judiciary with members of its own party, assuming a relatively acquiescent Senate." In doing so, the president extends his party's policy positions, and its positions on the meaning of the Constitution, over a much longer period than his own presidency. And, once the judges are in place, "they start to change the understandings of the Constitution that appear in positive law." For Balkin and Levinson, partisan entrenchment means that "[p]arties who control the presidency install jurists of their liking -- given whatever counterweight the Senate provides."

The process of partisan entrenchment should, I believe, be understood more broadly than Balkin and Levinson's initial presentation. The full process of partisan entrenchment has several stages, in which control of the courts in only one phase. First, proponents of a particular set of arrangements gain control over one component of the government. They then use that control to devise mechanisms that ensure their continued control of that component. For example, they might develop ways of implementing civil service regulations, intended to eliminate eliminating partisan influence on the lower levels of the bureaucracy, so that lower-level bureaucrats are in fact committed to a particular partisan program.

Or, perhaps more important, they set their substantive legislative or executive agenda to attract strong support from some, and to demobilize their opponents.

Further, those who control one component of the government try to leverage that control into taking control of other components.

Constitutional hardball is a high stakes game of winner take all that utilizes all the levers of power and institutional advantages to further the goals of one political party and render the opposition weakened and impotent. The Republicans have been playing at it for a long time, culminating in the Bush II administration, which took office with the most audacious hardball play in American history --- Bush vs. Gore --- and then proceeded to use every bit of power at its disposal to embed its view of executive power into the government while establishing partisan Republican advantage throughout. We probably won't know for quite some time just how deeply they have salted the civil service bureaucracy, the career Justice Department employees and the military with partisan actors but the effect on the judiciary is already obvious. It's not hard to imagine. (And, needless to say, any attempt on the part of Democrats to dislodge them will be met with shrieking about how the president cannot just fire employees at his pleasure. They have no problem with intellectual inconsistency and the Democrats continue to be flummoxed by this fact.)

This is important because one of the most inexplicable aspects of the Republican onslaught is the fact that they seem so fearless of retribution. It may be because they have become addicted to the thrill [6] or because they have (possibly correctly) assessed the opposition as being unlikely to ever challenge them on the same terms. But whatever the case, they have correctly understood this game to be a long one with many innings. Tushnet explains:

We might hope that political actors will realize that the worm will turn someday. That is, they might correctly believe that by playing constitutional hardball today they may be able to take control of all the levers of governing power, but they might realize that someday their opponents will seize the opportunity to play constitutional hardball in return, gain power, and shut them out of power. The problem here is with the time-horizon of political actors. They will not care if the worm turns after their politically active lives are over – after they die, retire, or assume the role of elder statesman or –woman. And, if history is a guide, the life span of a constitutional order is longer than the time-horizon of most active political actors.

I would not want to be held to the following judgments, but consider the possibility that the Jeffersonian- Jacksonian order lasted from around 1801 to somewhere in the late 1840s or early 1850s, that the post-Reconstruction order lasted from around 1876 to somewhere in the 1930s, and that the New Deal-Great Society order lasted from the mid-1930s to the mid-1970s. At every point the remaining life span of each constitutional order is longer than the time horizon of almost every political actor

That's depressing, isn't it? In fact, it tracks with George W. Bush's oft quoted belief that he will be redeemed after his death. Taking the long view of such things must be very comforting. It's apparently what comes of having no fear that you will ever be called to account for your actions in your own time.

But that constitutional order assumes that they win the game of Constitutional Hardball in the first place. And that's where there is some hope. It's true that the Republicans have been plugging away at this for decades. But they are all too willing to repudiate their "vision" when the power shifts, as it did during the congressionally centered Gingrich revolution, thus weakening their case as supporters and opponents switch places and argue the other side. And they do tend to choose horribly flawed leaders more often than not.

But the game itself is destructive, particularly for a powerful country like the US. Tushnet doesn't address this, but I think it's important to distinguish certain games of hardball from one another. That new constitutional orders would arise in the early days of the nation is not surprising. Conventions hadn't even existed before. But the others that he discusses came out of crises, by necessity, in order that the country survive. Political creativity was required. And while the parties did use those moments to advance their hold on the majority, they weren't born purely of a desire to do that as the conservative movement has been. The modern Republicans have been consciously playing a partisan game, one with mixed messages of small government and imperial presidency and "humble foreign policy" and debt and low taxes. They are not seeking to create a new constitutional order because of some philosophical belief. They are seeking it solely in order that they maintain their power.

Regardless of their success or failure each run at upsetting the conventions and common assumptions of how our government works shakes the foundation a bit and opens the door to unintended consequences. And whatever the ultimate outcome, the Democrats have allowed themselves to be intimidated by what Tushnet aptly calls the "brushback." Even when they fail, the pure audacity of their attempt can cow the opposition, which is what we've seen over and over again on the two major issues the conservatives care about: taxes and national security. As long as they keep brushing back the Democrats on those issues, the momentum remains on their side.

We are very deep in this game and the Republicans are ahead. But they haven't won it yet. Tushnet believes it will go on "until the Republican party establishes its dominance in all branches, or until its leaders realize that they are not likely to do so in the foreseeable future." I suspect that after the error prone debacle of the Bush II administration it's going to be quite difficult to establish a true dominance of the presidency or the congress for a least some little while. And while they are reeling, the Democrats have an opportunity to end this game of constitutional hardball. But they are probably going to have to deliver a little chin music to get it done. It remains to be seen if they have the nerve to do it.

Major hat tip to Kagro X at The Last Hurrah [7] for the Tushnet paper.