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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Should We Care What Kevin McCarthy Thinks?
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Saturday, April 23, 2022
Should We Care What Kevin McCarthy Thinks?
David Super
Recent revelations,
including that Kevin McCarthy told
his party’s leadership that he was going to tell former President Trump to
resign, have produced a public outpouring of (somewhat confused) commentary on
the Center-Left and, no doubt, rather different forms of consternation in
private within the establishment Right and the MAGA Right. This will no doubt feed the already active debate
about whether, if Republicans retake the House in November, Rep. McCarthy will
be the next speaker. That discussion, in
turn, assumes that the private views of the House speaker are very
important. This seems a good
time, therefore, to consider how true that assumption might be. Unquestionably, some speakers have been
immensely powerful and have had sweeping discretion to shape public policy as
they saw fit. Speaker Sam Rayburn was
legendary; Speakers Tip O’Neill and Newt Gingrich, too, wielded enormous authority
in their heydays. Speaker Nancy Pelosi
has also been spectacularly effective in impressing her personal priorities on
public policy. (Her political brilliance
may have been even more apparent when she was House Minority Leader.) But will the next speaker, particularly if a
Republican, have the same kind of sweeping discretion? The commotion
about the McCarthy tapes is consistent with the current trend of personalizing
politics despite abundant evidence that ideology, rather than personality, is the
overwhelming driving force in our politics to a degree rarely seen before. For example, all but three Republican
senators voted against confirming Judge Jackson despite a paucity of coherent
rationales. This exertion was rather
remarkable given the minimal likelihood that Judge Jackson, or anyone else whom
President Biden might nominate, would cast the decisive vote on any important
case or even receive particularly important opinion assignments on consensus
cases. (To complete the absurdity, senators
used the vote is signal their allegiance to the “sane” faction within the Party
by opting for a nonsensical reason – that she would not oppose Court-packing
schemes over which she would have no say as a justice – or to the QAnon faction
– by insisting that her sentencing of sex offenders, while in line with that of
Republican-appointed judges, somehow made her part of a pedophilic cabal.) As with Democratic
Supreme Court nominees, one could argue that personal views the next Republican
speaker of the House (or, indeed, the next representative from California’s 22d
District) matter little: the strength of
their enthusiasm for the right-wing agenda seems unlikely to be the main factor
limiting how far that agenda advances. Moreover,
a new speaker’s recognition of the danger of extremists in the Party matters
little if they have repeatedly demonstrated, as Rep. McCarthy has, a
willingness to look the other way to advance their personal ambition and the
dominance of their Party. This is, of
course, the same Rep. McCarthy who previously said he believed Russian
President “Putin
pays” Rep. Dana Rohrabacher and Donald Trump and never raised a finger
against either. Indeed, one could take his
statements in the latest tapes as an effort to persuade his caucus that concerns
about the insurrection were being raised internally and hence that they need
not go public with statements against the President or votes for
impeachment. I would not expect
a Speaker McCarthy to exercise any moderating influence on what legislation he
brings to the floor. He will be an
exceptionally weak speaker, perhaps almost comparable to Dennis Hastert, who
was largely a figurehead. If anything,
because these revelations will cause many MAGA Members to presume any restraint
he might exercise is a betrayal, he may have to be more unstinting in advancing
the far-right agenda. Thus, the major
impact of this week’s revelations may not be to change who becomes speaker but
rather to make the already pliable Rep. McCarthy even weaker and more beholden
to the far right should he ascend. Congressional
leaders’ most important actions (like those of Supreme Court justices) are largely
hidden from the public, but these actions are well-known by other Members. Even less than a subcommittee chair, who can
manipulate legislative drafting in ways other Members are unlikely to catch, speakers
are constantly accountable to their caucuses and to the well-resourced outside
advocacy groups that guide their Members.
Speakers thus have very little ideological discretion. Indeed, without any coherent, visible moderate
or mainstream faction in his party to speak of, he will lack the power some prior
speakers had to assign legislation to committees ruled by their ideological
allies. Speakers in both
parties, however, must arbitrate disputes within their caucuses between true
believers who want to fight every battle and Members from marginal districts
who want to lighten the load of unpopular votes they must explain to their
constituents. A speaker having
credibility with her or his more extreme Members can better-protect their marginal
ones. Speaker Newt Gingrich and de
facto Speaker Tom DeLay largely had that credibility, as did Speaker Nancy
Pelosi for most of her terms. Speaker John
Boehner did not, and the repeated far-right attacks on his authority forced him
to expose his Members to numerous unnecessarily embarrassing votes, both
adopting extreme right-wing positions that could never become law and voting
for measures negotiated with Democrats when far-right Republicans withheld
their votes. Speaker Paul Ryan was highly
credible with his “’wingers” but lost the majority in 2018 when he could not reverse
the undisciplined habits they had acquired under Speaker Boehner. A Speaker Kevin
McCarthy will be very much in the mold of Speaker Boehner, allowing pretty much
anything his far-right Members support to reach the House floor. And whatever his private views, he has proven
he will not restrain any MAGA president elected in 2024. This could undermine the longevity of any
Republican House majority. If the current
revelations, or others that follow, sink Rep. McCarthy’s bid to be speaker, the
result is harder to predict. The most
likely successor as leader of House Republicans would be Rep. Steve Scalise
of Louisiana. Rep. Scalise was inserted
into the leadership to represent far-right Members, but his several years there
have certainly tarnished him in those Members’ eyes. He likely would have a bit more credibility reining
in the most politically destructive impulses of his ‘wingers than Speaker Boehner
or Leader McCarthy, but not by a lot.
He, too, has given us no reason to believe he would restrain a MAGA
president’s extreme actions; indeed, he still denies the legitimacy of
President Biden’s win. Third in command
currently is upstate New York Rep. Elise Stefanik, who seized
her position from Rep. Liz Cheney. Rep.
Stefanik has worked hard to endear herself to MAGA Republicanism but she has a
history of seeking a moderate image and has not been active in far-right caucuses. It therefore is unclear that the MAGA faction
would go to the trouble of bypassing reliably pliant Reps. McCarthy and Scalise
only to settle for her. If far-right
Republicans install one of their own as speaker, they likely will select someone
with a lower profile, better communications skills, and less baggage than Rep.
Jim Jordan. Perhaps this new speaker will
claim moderation as being “only” a member of the Republican
Study Committee rather than the House Freedom Caucus. In that event, we can expect the final two
years of the Biden Administration to be dominated by partial government
shutdowns. At some point, that could open
huge fissures in the Party as Members from marginal seats attempt to force legislation
ending the shutdown to the floor over their own speaker’s objections with a discharge
petition. In sum, when it is
a given that any Republican speaker will be either a far-right true believer or
someone without the inclination or political capital to rein in more extreme
Members, it matters little whether that speaker privately appreciates the
danger of the Party’s extremism. In the
near-term, a savvy speaker from the Party’s more extreme factions could better-solidify
Republican control over marginal seats.
But a weakened speaker who is known to recognize the problems with
Russian influence and the January 6 insurrection might provide better cover for
any attempt to overturn the results of the 2024 elections (either for president
or in close House races). @DavidASuper1
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