Thinking like a pundit

Sandy Levinson

Thomas Reed Powell, the great professor of law at Harvard in the early 20th century, once memorably said, If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have [learned to think like a lawyer]. I am afraid that the same can now be said of all too many of our punditry. See, for example, David Broder's column in today's Washington Post, which takes Nancy Pelosi to task for the relative paucity of accomplishment by the Democratic Congress. It ends with a call for "the Democrats to get real about their own record on Capitol Hill. It needs improvement."

I have no doubt that the record of accomplishment is weak. But, as I actually said prior to the 2006 elections, anyone who believes that a Democratic victory would in fact lead to any significant changes was ignoring the barriers that the Constitution places in the way of such achievements. Broder himself notes that "[O]n 46 of the measures passed by the House, more than one-third of the total, the notation is added [by Pelosi], "The president has threatened to veto," or has already vetoed, the bill." Rather astonishingly, he goes on to say that "One would think that this high level of institutional warfare would be of concern to the Democrats. But there is no suggestion in this recital that any adjustment to the nation's priorities may be required. If Pelosi is to be believed, the Democrats will keep challenging the Bush veto strategy for the remaining 12 months of his term -- and leave it up to him to make any compromises. "

Broder, of course, doesn't suggest what further compromises Democrats should make in order to pass insipid legislation that the White House would be willing to sign. Nor, more to the point, does it seem to occur to him that it might be worthy of some discussion whether we're well served by a system that not only promotes such incessant "institutional warfare," but, more to the point, gives the President such a clear advantage in that war by being able to stop Congress dead in its tracks so long as he enjoys as 1/3+1 level of support in one House of Congress. Recall that presidents are successful 95% of the time when exercising the veto. Even if one likes the presidential veto, might one not agree that a success rate this high suggests that it is too severe a check on two Houses of Congress? (Nor, of course, does Broder mention the way that the filibuster has brought the Senate basically to a halt with regard to any half-way controversial legislation.)

I'd love to see an "improved" Democratic performance in the coming year. But Broder, as is typical of the modern punditry, focuses on the particular leadership styles of Pelosi (and, in earlier columns, Harry Reid) without its ever occuring to him that the Constitution to an amazing degree does in deed "constitute" our defective political system. Like John Edwards, he is willing to say that "our system is broken" without ever recognizing that relationship between our system and our Constitution. He would make a fine lawyer (and that is no compliment in this context).

[ADDENDUM: I should have been clearer in my original post that the "institutional warfare" is a function of what Rick Pildes and Darryl Levinson have called the "separation of parties" more than the "separation of powers" per se. Although Democrats were able to stymie some Republican legislation by the use of the filibuster, Republicans were able to score some victories, particularly with regard to judicial appointments, because of their control of both presidency and Congress. The present gridlock is a function of institutional divisions by party. A principal task facing any constitutional convention is figuring out what, if any, part of the modern party system should be "constitutionalized" and what should be left to the vagaries of the political marketplace. As to the former, for example, we would be well advised to emulate the Germans by putting certain congressional oversight committees relating to national security in the hands of the political opposition, since it is patently obvious that one cannot look to Congress to perform the oversight function vigorously if it is in the hands of the President's own party.]-
Posted 5:41 PM by Sandy Levinson [link]