Sunday, January 28, 2018

Strategy When They're Playing Constitutional Hardball and You Think It's the Wrong Game

Mark Tushnet

Not surprisingly I was pleased to see that my idea of constitutional hardball plays a role in Levitsky and Ziblatt's book on How Democracies Die (op ed here). Here I want to reflect on strategies once the game has started and you want to get it to stop. Levitsky and Ziblatt's book has the obvious prescription for Republicans -- the remnants of the "establishment" should do what they can to change the players on their side. For Democrats, though, their strategies involve policy prescriptions, not "moves" in the immediate game. What can Democrats do on a day-by-day basis in the game of constitutional hardball when their ultimate goal is to reinstitute the norms that Levitsky and Ziblatt treat as essential to sustaining a democracy?

The starting point is that Democrats today have relatively little power. So, one possibility is simply to model the behavior they think appropriate norms require -- what Levitsky and Ziblatt call norms of toleration and forebearance. This might include being open to discussion about Republican priorities, such as real repairs to the Affordable Care Act and compromises on immigration policy, and refraining from using every possible procedural tool in the minority's hands to delay legislation and appointments. From my partisan perspective as a relative outsider (no one in Congress has ever called me except to ask for a contribution), it looks to me as if Democratic party leaders are pretty much doing that, though I suspect that people situated similarly to me but on the other side of the partisan divide see it otherwise. (I refer to Democratic party leaders because there are [always] outliers who go off-message -- the problem, as Levitsky and Ziblatt see it, is that those who used to be outliers in the Republican Party are now in the center.)

Another possibility is to use the "weapons of the weak": As enumerated by James Scott, "foot dragging, dissimulation, desertion, false compliance, pilfering, feigned ignorance, slander, arson, sabotage, and so on." Scott's list derives from his work on peasant resistance, so some of the strategies are obviously inapposite to U.S. politics at the congressional level (except perhaps metaphorically). My sense is that Democratic party leaders have done some of this, and that the Democratic"base" would like them to do more. But, there's an obvious tension between this possibility and modeling appropriate behavior. Having been an advocate for more use of the weapons of the weak, I guess I think that such advocacy is a good thing because it holds the leaders' feet to the fire -- that is, it reinforces the idea that they do have to do something to show that they are not happy with the current rules of the game.

That last point seems to me relevant to the possible courses of conduct if -- one hopes, when -- Democrats regain some degree of formal power, such as by winning a majority in the House of Representatives. Here, I think, Levitsky and Ziblatt's emphasis on the norm of forebearance is really important. It's one thing for Democrats in the minority to talk about impeaching the President; it would be another, and in my view quite a bad thing on evidence currently available, for a Democratic majority in the House actually to do so. Somewhere in their book Levitsky and Ziblatt quote my observation that the Clinton impeachment breached a norm that impeachment in the House without a realistic possibility of conviction in the Senate was inappropriate. That would be true of a Trump impeachment (again, on current evidence). Still, it might not be terrible for Democratic party leaders to know how deep opposition within their base is to the President, so it might not be that bad for more or less random people -- commentators, stray members of Congress -- to go around talking about impeachment.

What if the Democrats' formal power includes a slim majority in the Senate? From my narrow perspective, the confirmation process is what matters. People like me think that tit-for-tat is the right strategy: Slow walk court of appeals nominations to the point of immobility, and hold any Supreme Court vacancy open until the next election. Real politicians have a different view, and -- on Levitsky and Ziblatt's analysis -- they are probably right. I can report that the "hold the seat open" strategy has almost no traction among political insiders. Rather, Democratic insiders seem likely to insist on a Garland-like nomination -- not someone from the highly touted Federalist Society list, but some more-or-less standard, relatively obscure but reasonably well thought of, and relatively old George W. Bush appointee to some court of appeals. And, of course, they know how to play the political game much better than I do, so I'm down with that strategy (subject to the "hold their feet to the fire" point about outsider advocacy).

And, finally, what about the (remote) possibility of Democratic control of Congress and the Presidency? Lots of things can change between now and the imagined then. I've tried to put Court-packing on the agenda, with no direct success (although I think I've managed to budge the needle a bit to the point where people who think about these things are now willing to entertain the possibility that some sort of"tit" is appropriate for the Republicans' "tat" in blocking Garland's confirmation; it's just that Court-packing isn't yet thought to be the right response). My guess is that normal processes of age, debilitation, and death will reduce the imperative Democrats might feel to do something -- just as happened after 1937. Still, it's unrealistic to think of Samuel Alito and Neil Gorsuch, much less John Roberts, following the courses taken by Willis Van Devanter (about whom I keep threatening to write an article), George Sutherland, and Charles Evans Hughes. So, again, I suspect that the "feet to the fire" practice should continue.

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