Represent!

Representation, rule of law, constraint of power, popular sovereignty. Of these (and other) values that underlie a democracy, representation was possibly the lowest priority at the American founding. Representation of people as Southerners, Protestants, people of German descent, etc. bore a nasty resemblance to the factionalism that the founders, witnesses to the fresh wounds of 18th century England, preferred to avoid. Representation of the states as states (i.e. the Senate and the Electoral College) came essentially as concessions to induce Southern and smaller states to sign on. Congress was designed to represent people geographically, but checks on the legislature were built into the design of the presidency, an office never intended to be representative in any way. As the legal culture of the United States developed, the power of Congress also came to be checked by the Supreme Court.

Despite the scorn shown to representation by the design of our institutions, the idea of representing people - particularly as members of groups with distinct experiences - gained in popularity in American politics, and in recent decades emphasis on diversity in governmental appointments has become a commonplace expectation.

Can it be fair, given the role of the Supreme Court to interpret law and resolve disputes about the meaning and application of the Constitution, for Pres. Obama to emphasize demographic characteristics in his selection of a nominee? Can I really have just written a sentence that long?

Yes, and yes.

There will no doubt be a great deal of attention to the question of judicial philosophy in the coming months. The crucial matter for determination is whether any nominee to the Court considers Constitutional questions in terms of original intent and meaning (per Justice Scalia) of the Constitution, or with contemporary consequences of a particular interpretation. This is an important question, an interesting question, and, perhaps regrettably, a politically loaded question. However, because one approach emphasizes policy effects in the decision-making and the other approach does not, this debate obscures the fact that however justices arrive at their decisions, the product of their philosophical ruminations will always have policy consequences. Whether justices consider politics, whether they consider policy, whether they contemplate consequences, their decisions have political impact. The Court is a political actor no matter what kinds of ideas its occupants have about the relationship between law and politics.

This is what gets us back to representation. It is more important that the Court show some kind of descriptive representation because it will interact with the elected branches and be involved in the kinds of policies that affect citizens lives. But unlike Congress or even the president, the lifetime appointment of justices means that there is no other mechanism of representation. The Court can strike down the actions of the elected branches, and (because of that) indirectly influence them. But justices are subjected to no election and no later accountability processes. This allows for balance between democracy and rule of law, which sometimes coincide, but occasionally conflict. The assurance of female, Latino, African-American, LGBT, etc. voices on the Court may constitute the main connection with the citizens affected by its decisions. All mechanisms of representation are imperfect, descriptive representation particularly so. It reduces people to groups and relies on arbitrary decisions about which groups are relevant. But we accept a mixture of imperfect approaches in order to enjoy a government that balances among different and conflicting values essential to democracy.

Richard II

Dick Cheney has gone public in his post-vice presidential role, most notably suggesting that the new president's policies are making the country less safe, and taking a position on the internal divisions currently eating away at the Republican Party. Cheney suggested a preference for the ideas espoused by Rush Limbaugh over those of Gen. Colin Powell, whose Republican cred was irreparably damaged (according to Cheney) during the campaign season. Fair enough, or at least until you consider Joe Lieberman's status in the Senate after running despite *losing his party's nomination* in the primary and then campaigning for the Republican candidate in the aforementioned 2008 campaign. The take-home message: American political parties are meaningful until they are politically inconvenient. Unless you're Colin Powell and trying to express a sentiment about the good of the nation, seemingly uninterested in elective office.

But I'm not writing about Powell today, even though he is a vastly more appealing figure than Cheney. I'm writing about Cheney. I'm not writing about him to lambaste him for his stated preference for an extremist windbag over an accomplished statesman. Lots of people, including the Washington Post's Eugene Robinson, have already done that. I'm writing about Cheney because I think he will run for president (at least for the Republican nomination) in 2012.

Cheney's life as the wizard behind the curtain didn't begin with his vice-presidency. He has served in the cabinet and as chief of staff. His executive branch experience is unimpeachable, even if that is the only thing about him that fits that description. What is interesting is not Cheney's choice to express opinions, but the manner in which he is going about it.

Unlike even notable spotlight-moth Bill Clinton, Cheney's statements are drawing a lot of attention to himself. They are clearly publicity driven and political. Although Cheney's words emphasize the national interest, this is no bid for the role of elder statesman (an art perfected by Jimmy Carter, but emulated to degree, by other former Presidents including George H.W. Bush). And this is clearly not the party-building circuit, making phone calls or appearances in order to loosen the wallets of the moneyed Republican faithful (a presumably rewarding Venn diagram if ever there were one).

Cheney is attempting to build his own political base in order to make a bid for the top of the ticket in 2012. I'm not saying this will be successful, even at the primary level. But I predict he will throw his hat into the ring. Cheney will be 69 (ETA: 71 - sorry- jra)then, but politics has yet to reliably prove to be unwelcoming to old white men. No one thought Cheney was a serious contender for VP in 2000 either- he was supposed to be heading up the search committee. Furthermore, Article II hardly prohibits those closely connected to a discredited administration from seeking the highest office to finish the job. After all, the Democrats narrowly escaped a repeat performance of the Clintons. Four years after Jimmy Carter left office in a cloud of malaise after losing to a divorced actor elected by the religious right, his vice-president Walter Mondale secured the Democratic nomination. Vice-presidents, in particular, have a way of translating second-banana status, however deserved, into something more.

Assymetrical Polarization: The Future of American Political Parties?

I've long railed against the idea of party "systems," particularly in the U.S. case. Parties operate according to their own internal logics, which includes a competitive calculation, of course, but are largely driven by internal power structures and ideas. This is readily evident in Sen. Arlen Specter's decision to caucus with the Democrats, and in the reaction to it, particularly by those on the right who praise this as a kind of ideological self-purge.

Beginning with the nascent ideational factions of Federalist and Jeffersonian in the early Republic, American political parties have exhibited a dual impulse to ideologically purify and to encompass the entire essence of American identity. Louis Hartz wrote in the 1950s about the inability of a society built on Lockean ideas to tolerate conflict on the fundamentals of politics. The manifestation he denounced was McCarthyism. In a less disturbing but no less anti-democratic form, we see this concept born out in the development of asymmetrical polarization.

In other words, the Republican Party has staked out a claim to a particular, narrow set of governing ideas, leaving the Democratic Party as a programmatic and ideologically varied catch-all party. The choice facing Americans in 2010 will not be expanded government services vs. lower taxes, the right to privacy vs. religious morals, or internationalist foreign policy vs. unilateralism. The choice will be between a catch-all party that leads by piecemeal and patronage and a largely demographically homogeneous party indistinguishable from an angry little ideological movement. The Democrats, as the party in power, should show leadership by building a real coalition, not just a circus of interests and viewpoints who all happened to end up under the same tent. True leadership - not shown thus far by President Obama, Speaker Pelosi, or Senate Majority Leader Reid - would forge a coalition based on a set of shared goals. Participants in the coalition need not be ideological twins or neglect their own identities, but they would benefit from belonging to a party that stood for something. A big tent makes for good rhetoric, but the people standing under it need to know why they should stay there.

Try again, George Will

George Will sometimes makes good arguments. This would be a good argument, except for its glaring flaws.
Will contends that the reason the recent economic stimulus package makes people feel uneasy is that it violates the non-delegation doctrine by providing regulatory latitude to the executive branch. Once again, old George Sixpack has his finger on the pulse of America. What are people talking about in beauty parlors and local taverns across the land? Unemployment? Crime? American Idol? Nope, it is the Constitutional doctrine of non-delegation that is buzzing uneasily on the lips of the average American.

Would that it were so, George. Would that it were so.

Those of us who are familiar with the Constitutional doctrine of non-delegation, and with Constitutional doctrines more generally, should be choking on our lattes. First of all, Constitutional doctrines are merely ideas of Constitutional thought, not universally agreed-upon interpretations or principles. That's why we have a Supreme Court, and if the decisions from their last session were any indicator, they have some doctrinal disputes. The idea that states could reject laws they didn't like, or nullification, was once a Constitutional doctrine which some leading politicians, especially in the South, supported. Furthermore, the non-delegation doctrine really had its heyday prior to Progressivism, the New Deal, and the development of the administrative state. The FDA, making new rules? Delegation! The FCC, making new rules outlawing Janet Jackson's boob? Delegation! OSHA? Delegation! The FEC? Delegation!
Will quotes the Supreme Court, That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."

If Will were my student, I'd fail him- he doesn't cite at all. That quotation is from Field v. Clark, a ruling from 1892. Non-delegation had its day in the sun in Schechter Poulty Corp. v. US, in 1935, invalidating a key piece of New Deal legislation and incurring the wrath of FDR. This case is mostly famous for prompting a sea change in Supreme Court interpretation of both non-delegation and the commerce clause, two developments necessary for the emergence of the modern administrative state.

The Supreme Court will be the ultimate arbiters of this question (if the bill is challenged in Court, as New Deal legislation routinely was). It is far from obvious what they might say. Contemporary decisions do take the separation of powers seriously, as evidenced in the Court's rejection of the "legislative veto" (1983), and the line-item veto (1998). But this Court also seems generally respectful of precedent. Adopting a pre-New Deal approach to executive branch regulation would be out of step with that.

Nineteenth century approaches to the federal government were vastly different, and Will would be well-served to consult Supreme Court decisions that reflect contemporary standards. It's not as if the Court lacks for verbosity in explaining its decisions.

Let's hope next week he's not quoting Roger Taney...