Balkinization  

Saturday, May 13, 2006

Paying the price for defending Clinton

Sandy Levinson

In my last post, I bewailed the fact that we have no workable constitutional mechanism--and, just as much to the point, acceptable and widely shared political rhetoric--for getting rid of an incompetent, rather than a criminal, president. Let me suggest that liberals are now seeing certain chickens coming home to roost because of their highly legalistic defense of Bill Clinton in 1998. Thus many prominent legal academics (I think particularly of Cass Sunstein, but there are certainly others) insisted that Clinton could be impeached only for a high crime and misdemeanor, and neither disgracing his office nor perjury seemed to count. And Sean Wilentz, in testifying before Congress, described the Andrew Johnson impeachment as merely "political." Not only might one proper response be "so what" (though I admit that the language of the Constitution presents certain problems), but it is also the case that Wilentz, in his zeal to save Clinton, utterly ignored the fact, as spelled out by Bruce Ackerman in his pathbreaking work on the constitutional "transformation" during the aftermath of the Civil War, that the impeachment was central to getting the Fourteenth Amendment, among other things. In any event, isn't it clear, in retrospect, that the country would have been far better off had Clinton resigned (and given Gore the advantage of presidential incumbency)? Instead, liberals, like Monica Lewinsky herself, played into Clinton's narcissism--and the rhetorical pull of the fixed-term presidency, which gives presidents an almost feudal-like sense of a property entitlement to the White House. Far better that we adopt a Ross Perot notion of the president as simply our employee, to be bounced whenever he (or in the future she) manifests sufficient incompetence to warrant firing. But that would require a Constitution that gave the employers (We the People) the right to fire their agent (the President) for just cause even if the agent hadn't actually robbed the till. (Shouldn't it be enough if he consistently misplaces the goods and alienates the customers?)

Comments:

Bill Maher argued that impeaching Bush for violating the law, lying about WMD, etc. is too good for him. We should do to him what they did to Clinton--impeach him for absolutely nothing.

More seriously, Clinton was highly popular (and his popularity actually increased as the Lewinsky "scandal" went on), so while you're probably right that resigning would have made Gore more likely to win and set a precedent (maybe) for stopping Bush, I'm not sure that it made sense to do that at the time.
 

In a country with only 2 (unfriendly) political parties, how do you prevent one party from using a malfeasance removal power immediately, repeatedly, and overtly politically against the other? I mean, we're not post-war Italy here. How do you maintain stability of leadership under your scheme?
 

Peter asks a very good question. I offer a variety of options in the book, depending on the situation. One is to trigger new elections. (A problem, of course, is that we have a party system based on the fixed calendar, which means that there is never a "government in waiting" as there is in some parliamentary systems.) A second is to get rid of the incumbent and replace him/her with the VP, which would have been a sensible solution re Clinton since the brunt of the criticism against him was personal rather than policy based. That wouldn't make any sense in the current situation inasmuch as much (though not all) of the distaste for Bush is indeed policy based. So that brings up the third possibility, which is to allow the congressional party caucus of the president to pick a new president. This is designed precisely to prevent the kind of "party coup" that Peter alludes to.

The ultimate question raised by Peter's post, though, is how much we value "stability of leadership" as against what might be termed "quality of leadership." I don't disdain "stability," but I think we've purchased way too much of it in the US, and could do with a bit more "quality control" even at the price of a bit of instability. As I note in the book, most European countries are able to handle changes in leadership without believing they are in a "crisis."
 

I have a hard time seeing how the Clinton impeachment applies to the problem of competence. Clinton was not incompetent, at least not in the way Bush II is; had he been, the impeachment likely would have succeeded.
 

I'd have voted to impeach and convict Clinton for lying on a deposition and wasting the nation's time and attention with his sexual escapades; but isn't there a time frame allowing a subsequent two full terms by a partial-term succeeding vice-president? Yeah, the 22nd Amendment: "more than two years of a term." Really, Clinton should have resigned for the good of the Party and the nation in favor of Al (disclaimer: friend of Al).

I believe the Court would not get in the way of whatever Congress decides high crimes and misdemeanors means, as a political question, and because the Justices could be next in a confrontation.

I'm listening to strucural reform suggestions seriously; but what we have here is hardheaded one-party rule based on the masses' periodic susceptibility to "war" hysteria combined with a lifestyle backlash by religionists.

I'd welcome even a return to so-called gridlock just for some non-extremist government I could turn my back on for a while to pursue more pleasant interests.
 

I agree with the other commenters that Clinton should not have been impeached, and certainly shouldn't have resigned. What a terrible precedent that would set. Clinton's job approval and personal approval ratings were high and only went higher during the Monica faux-scandal.

If he had capitulated to the right-wing smear machine, we would be giving up control of our government to whomever could best manipulate the media. Hillary wasn't wrong when she said there was a vast right wing conspiracy out to get Bill. I, for one, don't want that VRWC to run the country.
 

Sandy Levinson once again is thoughtfully applying the constitution to political conundrums.

My take was the process which was Clinton's impeachment was a social policy based retribution. I think he was one of the best presidents the US has ever had, save the morals matters which are more endemic in more age-worn political systems. Such is the US' eccentric history that the trope could play in the media of world cynosure.

Although Sandy's contention may be incontrovertible that had Gore acceded to the presidency, like Gerald Ford did for Nixon, Gore likely would have been elected instead of George Bush, I find the criticism of Clinton distinctly unparallel to the subterfuges which were Nixon's disgrace.

Yet, politics, and even law, are set in the society's context; and there is a way of viewing Nixon's resignation under pressure as a social over-reaction incommensurate with his legalistic pecadilloes.

Rather, those of us who were glad to see Nixon quit, and were disappointed that Clinton was impeached, merely reaffirm the verity that our vision is tinted with the views imparted by our own national context in the wider global civilization of which we are a part.

Between those bookend events lay Iran-Contra. And I see a lot more homologous the comparison of I-C with Bush's unitary executive excesses. There is a distinct disparity in the congruencies, though, in that Reagan was a trained script reader, whereas Bush-2 has a fairly distinct personal voice and view of executive authority, albeit experience as governor in a state that did not have a structurally strong governorship, by design of that state's own constitution. And as US president there are many executive branch attorneys to provide the legal expertise which a nonlawyer president requires to act within the law.

Besides the discussion of executive branch investigations and impeachments as social reprisals engineered by the opposition party, I would like to highlight some fairly recent discussion of this in presidential and congressional literature in the form of works by Cooper website, paper; Kelley 6 papers, and Treanor: as my view is that there remains a flaw in the concept of the executive's having the responsibility of appointing its own investigator, and during the Clinton ordeal the majority party ended the law which had superseded the currently effective law, namely, the OIC went out of existence in 1998, ending congressional oversight of interbranch investigations.

The OSC and OIC concepts need revisiting and sharpening, with greater nuance; as, someday in the future we may be in need of an appointee as strong as Fitzgerald, but circumstances might not place such an accomplished individual in the OSP post.

As for the international perspective that a two-party system is a recipe for excessive stability, I proffer that this strong and balanced form of polity is inherent in our system and it corresponds well with our vision of our own development. One only has to examine some of the third party candidates over the past three decades to examine what is different between our two-party modality and the governments of convenience which are seen throughout the parliamentary systems in other lands. Living in the wild west is a challenge, and, so far, we seem to have lifted the best of several European forms of government without succumbing to the debilities endemic in those nations' political systems to this day.
 

If we had a vote of confidence sytem in the US Bill Clinton would have been out of office in 1994.
 

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