A review of thirty years of scholarship on why judicial impeachment - even on partisan grounds - is permissible.
Democracy Is Endangered More by the Size of Government Than by Republicans
In an op-ed in the New York Times, two Harvard political scientist professors, Steven Levitsky and Daniel Ziblatt, have sounded the alarm about democracy in America. It is in danger they say mostly because democratic institutions are no longer backed up by the “guardrails of democracy”—deep norms of “partisan self-restraint and fair play.” Sadly, their analysis of the decline of these norms is itself both partisan and shallow. It is partisan because they note only Republican breaches of such norms, when Democrats have engaged in breaches as well. Its shallowness in turn comes from their partisanship. They blame a particular political party rather changes in the nature of our polity, like the growth in the power of government and decline of federalism.
The partisanship of Levitsky and Ziblatt is striking. They claim that one of the informal norms is that legislative votes about matters of “extraordinary importance,” like impeachments, be bipartisan and Clinton’s impeachment by Republicans was not. But the only previous impeachment of the President—that of Andrew Johnson—was also a party-line vote. The norm that creating new entitlements—also actions of extraordinary importance—should be bipartisan, however, is a much more established one: Social Security, Medicare and Medicaid all had bipartisan support. Yet President Obama enacted the Affordable Care Act without the support of even one moderate Republican such as Senator Susan Collins of Maine.
These Harvard professors decry the failure to vote on Merrick Garland, which they characterize in hyperbolic terms as “stealing” a Supreme Court seat. But, as Ed Whelan has shown, it is rare for a Senate controlled by the opposing party to confirm a justice when the vacancy occurs in the last year of a President’s term and Obama’s own counsel said she would have recommended the same strategy had the roles been reversed. And Levitsky and Ziblatt’s argument that the Senate has otherwise deferred to the President’s choices “within reason” depends on their ideological judgment that rejecting Robert Bork, one of the most distinguished law professors of his era, was reasonable.
Finally, while worrying about what they believe will be the likely executive excesses of President Trump, they do not even mention any excesses of President Obama, such as his order granting millions of illegal aliens work permits because he could not get his preferred legislation on immigration through Congress.
The message of the op-ed, in short, is that democracy is in danger because of Republicans. But surely political scientists should consider deeper explanations than that. In my view, the norms of bipartisanship they describe have weakened as our government has become larger, more executive in nature, and less decentralized. Under those circumstances, the prizes for controlling the national government and particularly the presidency become greater, and thus the partisan temptations to play hardball harder to resist. Winner-take-all government makes for win-at-all-costs politics. If the federal government can remake health care, citizens will naturally think of politics as more of a life-and-death issue. If the Supreme Court can determine new rules of national morality, there will be a culture war over its composition.
Another of the “guardrails of democracy” has historically been our universities. They help make future leaders of society more dispassionate and less partisan and provide more profound analysis of society’s problems than politicians can offer. Sadly today, as this op-ed shows, our universities are so dominated by one party and employ so many reflexive partisans of that party, that they can no longer perform their own essential democratic function.