an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
An interesting natural experiment in the Senate: The Darryl Levinson thesis revisited
There is an unusually interesting story in today's Washington Post, tellingly titled "For GOP, Discord in Dissent," on the growing tensions in the Senate with regard to expressing disapproval (or support) for Bush's escalation (or whatever you think it is). What I find most interesting are the following paragraphs:
Republican leaders had hoped to divide Senate opinion largely along party lines, to allow Bush to argue that any outright statement opposing his plan was politically motivated partisanship. ...
Instead, rival measures continue to proliferate.... "Resolutions are flying like snowflakes around here," Specter said.
One group of ruminating Republicans is made up of the 20 GOP senators who will face voters in 2008.... The Warner measure has attracted at least three potentially vulnerable Republicans -- Sens. Susan Collins (Maine), Norm Coleman (Minn.) and Gordon Smith (Ore.). Sen. Lamar Alexander (Tenn.), another Republican whose term will expire in two years, said he was speaking for many of his GOP colleagues in asserting, "I'm not persuaded that sending 21,500 troops into a civil war in Baghdad is a good idea, but I haven't found a resolution I can support."
So what we see is a wonderful natural experiment with regard to the two variables that Darryl (no relation) Levinson emphasizes as key to explaining the behavior of legislators of the president's own party (since it isn't any genuine concern for maintaining the institutional prerogatives of Congress, as Madison wrongly asserted): Their strong desire, on the one hand, to be good members of the party team, coupled with an equally strong desire to be re-elected. One can be certain that almost all of the Republicans (who besides Hagel?) would continue to act like sheep if Bush's numbers were substantially higher. What is interesting, of course, is that most Republicans (at least the ones not facing re-election) continue to rally round their guy. And, as I've indicated in earlier posts, it's equally interesting that Democrats, with the exception of Joe Lieberman, seem more united than ever before, presumably in part because that appears to be a good strategy for 2008. If Bush loses the support of enough members of his part to allow one of the "anti" resolutions (including the one supported by John Warner) to go through, then he will be even more miserable in his 720 remaining days in the White House, since the ultimate message of such a vote would be not only that they have lost faith in his policies (who hasn't?), but also that they no longer view him as possessing enough political capital to make life miserable for those who stray. It will also, I predict, doom the McCain campaign.
Were I advising Chuck Hagel, incidentally, I would be studying how to run for the presidency as an independent and looking for a Democrat who would make a good running mate on a "national unity, plain-speaking" ticket. 2008 could be an extraordinarily interesting political year.
Addendum: I also strongly recommend Fred Barbash's column in today's Post, "Why Would Congress Surrender?" It bewails Congress's "lassitude" with regard to seizures of ever-more-power by the Executive with regard to war. But Levinson provides a perfectly good answer to Barbash: Members of Congress just don't care that much about preserving institutional prerogatives, so it should be no surprise, even if it is a cause for lamentation, when members of the president's party acquiesce in claims of executive power or when they (like the opposition party) concentrate entirely on finding pork for their constituents in order to be re-elected. And, after all, the only resolutions with a chance of passage are "debating society" statements that "we wish to express our disapproval of the policy" rather than in fact to suggest that Congress is willing to take concrete action to stop it. Power goes to those who are willing to exercise it, as Dick Cheney knows so well. Few members of Congress actually are interested in exercising Congress's powers with regard to waging war. Posted
by Sandy Levinson [link]
If we accept that the individuals of both parties are interested only in self-preservation, than the two parties are behaving exactly as expected.
Sadly, at this point, it is in the Democrats best interest for the war to continue and for it to be a total fiasco. They have already attained the "party of opposition" status with regards to the war, without really opposing it. The choice in 2008 will be between a party that favors continuing the war (Republican) and a party that favors not discontinuing the war (Democratic)--logically the choice is the same, but the Democrats get the advantage of being able denounce the war--the continuation of which only enhances their power--while doing nothing to end it. Meanwhile, Republicans who turn against the war appear as opportunists and are encumbered by their own party's habit of labeling anyone who is anti-war as a "defeatist" or a "traitor."
The vanity of Hagel and other opportunistic Senators at least agitates for change, but it is again only for self aggrandizement. I think that when John Murtha turned against the war, every potential presidential contender in the Senate perked up his/her ears and realized the staggering amount of favorable free press they would receive by turning against their party. This has lead to many individuals denouncing the war, but neither the Senate nor the House has any interest in acting, so the status quo will continue until after the 08 elections.
I should finally note that the condition of craven cynicism that today infects and directs the Democratic party does not make the party of opposition a righteous savior--they clearly are anything but. However, Republicans will seize on this fallacious reasoning during the coming election cycle, as a way to denounce the motives of their opponents.
For the record, I reject the description of Senator Hagel as "opportunistic," as would certainly be the case with, e.g., Rep. Murtha. Others may deserve such an appellation, in both parties, but one should not presume that everyone who is speaking out on the war (including those who support it) is moved by crass self-interest. There are honest patriots on both sides.
I suppose that Murtha and Hagel are as "opportunistic" as any of us. It's in our nature. As pols, even more so, given the rewards of being pro-MIC and a pol these days. Just ask Randy "Duke" Cunningham or Duncan Hunter or "Crazy" Curt Weldon, to name but a few. I don't see that "opportunism" at all in Murtha or Hagel's opposition to the war. Not one bit. These are two men who have seen war up close. I do see it in other Republican's new found opposition. And I doubt the Democratic party is quite as cravenly cynical is Keith Carr thinks they are or I am myself.