Monday, January 01, 2018

Things To Do In San Diego When You're ... [cue Warren Zevon]

Mark Tushnet

I'm looking forward to the ACS panel on norms at the AALS meeting, though I expect to come away grumpy. (There's also been a series of posts on Lawfare dealing with norms and the President. The link is to the homepage where all the posts are listed.)

Why grumpy? Because the focus is likely to be too much on the President and the pressure placed by his words (as the Lawfare posts argue, more than his actions) on constitutional norms. The overall Lawfare argument, which seems to me basically correct, is that the norms focused on the presidency have not yet been displaced by other more worrisome ones. (Partly that's precisely because norms are instantiated in actions that have consequences, then -- or before then -- rationalized in words.) But, for me, there's been a much longer term erosion of norms in the legislative process. (After all, I published "Constitutional Hardball" in 2003.)

It's not interesting (to me) to attribute responsibility for that erosion (and indeed even engaging in attribution of responsibility is a manifestation of partisanship). Rather, what's interesting to me is thinking about what one does in media res, that is, when one believes that one's opponents are actively engaging in norm breaches (perhaps with the aim of constructing a new set of norms). And, as I've blogged before, I think that the only reasonable response is to adopt a tit-for-tat strategy (as I believe Republicans would say they have done) rather than to assert that the prior norms remain strong enough (so that "temporary" departures from them can be absorbed, which is, overall, the Lawfare posts' argument).

My grumpiness arises from a strong sense that "my" side in this is playing the patsy, refusing to even think about tit-for-tat as the politically responsible thing to do. I understand the Pozen-Fishkin argument that the Democratic coalition's composition makes it politically difficult for Democrats to engage in tit-for-tat -- but political strategies develop in light of what coalition constituencies take as their program. So -- for activists rather than academics (or for academics in their activist clothing) -- it seems to me a mistake to take tit-for-tat off the table as a matter of principle. (Of course, figuring out what tit-for-tat means in 2018 is difficult, though not impossible -- I've suggested breaching the norm of routinely giving unanimous consent in the Senate to a whole slew of things [and as I understand it Senator Schumer has done some similar things, within the constraints imposed by his caucus]-- but the possibilities for 2019 might be quite different.)

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