"Constitutional hardball," "showdowns," and "crises"

Sandy Levinson

Mark Tushnet has coined the term "constitutional hardball" and Adrian Vermeule and Eric Posner "constitutional showdowns" to refer to certain sorts of acriminious controversies over the extent of institutional power under the Constitution. (Jack and I have written about "constitutional crises," but we agree that not every episode of "hardball" or "showdown" counts as a full-scale "constitutional crisis," even if we argue that it is not very helpful to refer to, say, secession in 1860 as merely an episode of "hardball" or "showdown.")

So, whether or not the egregious use of the filibuster in the egregious Senate constitutes a "constitutional crisis," surely it exemplifies a "hardball" or "showdown" inasmuch as Republicans are determined to prevent the Administration from registering anything that might be viewed by the American public as an "accomplishemnt." They are, I think, behaving perfectly "rationally," given their view of how to succeed in the 2010 and 2012 elections. But it takes two to pay "hardball" or engage in a "showdown," and it's totally unclear that either Senate Democrats or the President has the willingness to do so (which means, in effect, that mad-dog Republicans prevail).

The two most obvious counterattacks are a) recess appointments, which the Constitution explicitly authorizes (the fact that its merits may be highly debatable is beside the point); and b) a full-scale attack on the filibuster. The first is the decision of the President. He's done a bit, but he should be far more aggressive, simply announcing that he will offer a recess appointment to anyone for whom the Senate refuses to vote within a month after being cleared by the relevant committee. No holds or filibusters will be allowed to prevail, period. The second is the choice of the Vice President, though it would be interesting indeed if Obama "ordered" Biden to rule that the Senate is not a continuing body and therefore allow the filibuster to be eliminted or, at least, to be significantly modified in the direction of majority rule.

My own view is that the inability of the Senate to respond to the challenges posed by climate change may well count as a "crisis." All of us may pay an extremely steep price for the awfulness of the Senate. A fine piece by E. J. Dionne, tellingly titled "In American politics, stupidity is the name of the game," concludes, "[W]e need to reform a Senate that has become an embarrassment to our democratic claims." Reforming the filibuster would be only a start, however necessary. But it surely wouldn't be sufficient.
Posted 4:29 PM by Sandy Levinson [link]