We need not pretend that constitutional and legal philosophies do not map consistently onto substantive political outcomes.
The President of the United States is both head of government and head of state. As a result, he must not simply act as a party leader, but as the leader of the United States. He is both obligated to respect social traditions that contribute to national unity and behave personally in ways that promote the sound social norms that undergird civil society.
I have almost nothing good to say about President Obama’s policies as head of government. Probably the most important policy with which I wholeheartedly agree is his decision to move toward privatizing space exploration, a pretty insignificant matter. But I give him high marks as head of state. He has behaved decorously, has largely respected the social traditions of the office, and has refrained from personally denouncing his opponents.
Sadly, I have no such confidence in the performance of either of the candidates most likely to be elected President in 2016. It is almost superfluous to detail the reasons that Donald Trump is likely to fall short. He insults his opponents in the most personal terms and vulgarly discusses matters in public that should be private. My friend Heather Mac Donald rightfully argues that his presidency is likely to coarsen an already coarse social culture.
But Hillary Clinton is in my view no better. It is well known that while First Lady she personally demeaned women who were telling the truth about her husband. Even more importantly, in her autobiography she even boasts about an incident that casts doubt on her fitness to be head of state. There she discloses that she attempted to exclude Chief Justice William Rehnquist from administering the oath to President Clinton when he began his second term in 1996. As justification, Mrs. Clinton noted his memo written as a Supreme Court clerk that doubted the Court’s constitutional authority to end segregated schools and his opinion as a justice that disputed the Internal Revenue Service’s statutory authority to deny charitable deductions to racially discriminatory colleges. But these complaints are surely cover for what really angered Mrs. Clinton. As she notes elsewhere in the book, Chief Justice Rehnquist had appointed the judges to the special division that had appointed Kenneth Starr. Rehnquist was guilty by association with an independent counsel she hated.
The then-First Lady suggested that either Ruth Bader Ginsburg or Stephen Breyer administer the oath. These were the most junior justices on the Court, the only two appointed by a Democratic President, her husband. He had the good sense to reject a recommendation that would have appeared partisan and petty.
Mrs. Clinton’s effort affronted the norms that have marked transitions of presidential power since the beginning of the republic. The tradition of the Chief Justice of the United States swearing in the President embodies the essential need for the inauguration to restore national unity after the inevitable divisions of a presidential campaign. This tradition has held even when, or indeed particularly when, Presidents have disagreed vehemently with the Chief Justices at the time. Just think of Thomas Jefferson and John Marshall, Abraham Lincoln and Roger Taney, or Richard Nixon and Earl Warren. Hillary Clinton by her own words reveals that she lacks the emotional maturity and discipline to be head of state.