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 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Ben Wittes proposes that Hillary Clinton, once elected, take the initiative in forming a government of national unity by appointing a non-trivial number of traditional Republicans to important positions in her administration. He notes in passing that such governments are characteristic of parliamentary, not presidential, systems, but that observation poses greater difficulties for his proposal than he acknowledges. In a separation-of-powers system, a true government of national unity would involve the presidency and the House and Senate.
How might that happen? Well, in part by what I called gestures of reconciliation by Republicans in the Senate and the House. As to the Senate: Assume, as I do, that a President-elect Clinton sends a clear signal that she's OK with Merrick Garland as a Supreme Court nominee. Senate Republicans could move forward with his confirmation immediately after receiving that signal, by scheduling a pro forma hearing and an immediate vote on the nomination. I suspect that there's more that they could -- and should -- do to signal good faith in pursuing a government of national unity.
As to the House: I've suggested the possibility that there might be cross-party voting for the Speaker of the House -- either (I assume) Paul Ryan soliciting votes from Democrats by proposing a formal power-sharing arrangement, knowing that he would lose votes from Republicans (and completely dash his hopes, if he has them, of being the Republican nominee for President in 2020) or, more interesting, Nancy Pelosi soliciting votes from Republicans by proposing a similar, though of course substantively different, power-sharing arrangement. I'm been persuaded that the structure of American politics makes such formal arrangements impossible.
But, without participation by the House and Senate, we wouldn't have a real government of national unity. We'd have a government in which the President tries to govern from the middle out, and in which the Senate and or House continues to obstruct that effort.
I'm not opposed to the idea of a government national unity, but Wittes's proposal strikes me as half (or one-third) baked, given the U.S. institutional/constitutional structure.