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sometimes takes a heart attack to seriously deal with a dangerous
lifestyle. Nothing concentrates the mind so well as
chest pains.
The same should be true about the departure of Sen. James Jeffords
from the Republican party and the loss of the Senate majority. Nevertheless,
some commentators and senators appear to be living in denial. After
eight long years of waiting, the shifting of the Senate over to
Democratic control reduced the prior hundred or so days to a mere
tease, a shadow of what might have been in a Republican Camelot.
Jeffords-bashing
is to be expected in such circumstances, but this anger is often
accompanied by glowing self-evaluations from Republicans. Like living
in denial of a weakened heart and extra weight, the White House
needs to take a more detached view of its prior record and avoidable
gaffes in Congress. Jeffords is a predictable symptom of a more
fundamental problem for the White House.
Despite the
chorus of angry recriminations, the Republicans may ultimately find
that this event was more fortuitous than catastrophic. In areas
like judicial nominations and the environment, the Republicans have
followed Oscar Wilde's rule that the only way to be rid of temptation
is to yield to it. The result has been a record that already appears
immoderate on legal issues and antagonistic to the environment.
At the risk
of sounding heretical, the Republicans should have learned something
from President Bill Clinton. In politics, Clinton showed all of
the restraint that he lacked in his personal life. While personally
quite liberal, Clinton largely moved centrist judicial nominees
and policies in his early days, often publicly breaking with the
left wing of his party.
Once given
the keys to the city, the Republicans left the impression that lobbyists
were allowed to run amok. Despite the obvious inclination of the
media to portray the administration in this fashion, the administration
appeared to rush to fulfill every stereotype of a government that
was so tied to corporate interests that it lacked only a "sponsored
by" message at the bottom of every presidential paper. Regardless
of the reality, polls show that the majority of people believe this
image, which is being aggressively and skillfully promoted by Democratic
activists. This is particularly odd given the mantra from the White
House that President Bush is adept at working with Democratic-controlled
legislative bodies as governor. In the first 100 days, there appeared
little recognition that there were any Democrats in Congress. Moreover,
in failing to invite then-Republican Sen. Jeffords to a special
ceremony for a Vermont teacher — in addition to other slights —
the White House appeared peevish and vindictive with its own party
members.
While the White
House has achieved a great victory with its taxation package, and
has performed well in foreign relations, it will need more than
insular legislative victories and crisis management to achieve any
lasting legacy. The fact is that the Republicans were not having
an incredible run in control of Congress and the White House. To
the contrary, while they were technically in control, the Republicans
did not have a meaningful hold on Congress to move a hard-right
conservative agenda. Despite this fact, the Bush administration
acted as if it was inheriting the 1994 Congress and its Republican
majority. As a result, it blundered in taking environmental decisions
over issues like arsenic and global warming that drove away moderates
who looked to the Bush administration to bring stability and credibility
after the Clinton years. What is particularly distressing is that
polls show that the vast majority of Republican voters share the
strong environmental interests of Democratic voters.
I was one of
those environmentalists sympathetic to the Bush administration in
freezing the last-minute orders of President Clinton. The fact is
that Clinton lacked the courage to implement any of these changes
until the twilight hours of his term. While I agree with many of
these measures, I fully understand why the Bush administration would
not yield to such unilateral conduct by a departing president. However,
these measures (and other environmental issues) offered Bush an
opportunity to prove the existence and not simply the rhetoric of
a "Big-Tent" Republican party. The Bush administration
could bring some very useful new approaches to the environment,
but it has to achieve a needed credibility in the area before such
proposals will be given any credence. Its initial moves in the area
were ill advised, ill timed, and achieved precisely the goal of
the Clinton administration in forcing the Bush White House into
an early anti-environmental stance.
On some of
these legal and environmental issues, the Bush administration is
advancing solid policy positions in the worst possible way. Judicial
nominations fall into one such bungled area where the administration
unnecessarily antagonized Democratic members with little apparent
benefit. The biggest errors have not come with the actual (limited)
number of nominees but over more fundamental issues. For example,
the administration was absolutely right in seeking the elimination
of "blue-slipping," a ridiculous process where one or
two senators can block a judicial nominee for any reason. Rather
than lay the groundwork for such a change and marshal support among
academics and public-interest groups, the administration blissfully
proceeded to tear down a decades-old privilege. The result was the
appearance of an administration worried about pushing through extreme
nominees and attempting to change the rules in mid-stream for purely
opportunistic reasons.
Likewise, the
administration abruptly excluded the American Bar Association (ABA)
from the formal nomination process without proper political or legal
advance work. Ultimately, in the ensuing controversy, the administration
failed to advance the full slate of nominees and now looks like
a kid who first threatened and then appeased every schoolyard bully.
With an evenly divided Senate, the ABA issue gave the Democrats
what they wanted: a plausible excuse to slow down nominations to
force ABA review as part of a congressional review. After occupying
White House staff and leading senators on this issue, the ABA is
now back as part of the process for review.
The administration
also failed to control its party members in some embarrassing areas,
such as the proposed nomination of Strom Thurmond's 28-year-old
son as the United States Attorney for South Carolina. For those
of us who were critics of the Clinton administration and its lack
of principle in politics, the embrace of nepotism is hardly a welcome
change from nihilism. Rather than spend time and political capital
on such dubious nominations, the administration should focus on
fights like the delayed nomination of Congressman Christopher Cox,
who is exceedingly well qualified for the bench and has been isolated
solely due to his conservative views. The White House cannot control
the Senate but it can exercise greater control over the debate in
that body. The issue of Strom Thurmond Jr. should have been put
to rest with a polite call from the White House Counsel. Conversely,
Cox represents good and honorable battle for the Republicans. The
most valuable contribution of the Bush administration could be a
new look at the criteria for evaluating judicial nominees.
With the Congress
divided, this may be a unique time to forge such a guideline or
formal understanding to avoid the shameful use of nominees for political
theater. Of course, the hands of Republicans are far from clean
in using political ideology to oppose nominees, but the "clean-hands-doctrine"
is rarely relevant in congressional controversies. For trial and
appellate nominees, ideology may be a relevant factor in some cases.
However, Cox is an example of someone who has never indicated an
unwillingness to respect the separation-of-powers doctrine and the
set-aside activism for judicial neutrality. I clerked for the Honorable
Eugene Davis, who is easily as conservative as Cox, but one who
never allowed his personal views to overwhelm his institutional
role. Both ardent liberals and conservatives can serve with distinction
on the federal courts. It is not their personal ideology but their
institutional inclinations that control their legacy. The greatest
danger to our courts is activism and a refusal to yield political
judgment to the legislative and executive branches. A true conservative
should find such activism anathema regardless of whether it is serving
a favored or disfavored function.
This issue,
like many such issues, has been lost in a White House agenda that
yielded to readily to ideological confrontations. Even on issues
like "blue-slipping" where the White House was on the
side of the angels, it played directly into the hands of the Democrats
and ultimately had to withhold over half of its nominees to avoid
a bloodbath on the Hill. In the meantime, the White House pulled
back its most conservative nominees while fielding Professor Michael
McConnell, who is now in an unnecessarily high profile and exposed
position for ideological attacks. There is no principled foundation
to fight on such nominations and no apparent strategic plan for
bringing these nominations to the floor with the lowest possible
attrition. Rather, the Bush administration is gradually drifting
into the prior tit-for-tat system of nominations.
It is time
to speak plainly about these problems. This is an administration
that can desperately use a few well-meaning critics both inside
and outside of the White House. In the caricatured world of Hardball
and Rivera Live, commentators and legislators are expected
to "stay on script" and unfailingly support one political
viewpoint. The Bush administration should not believe its own reviews.
While these fights have been good for Crossfire, it is neither
serving the interests of this Administration or the country.
One priority
must be some semblance of balance in both the White House and its
legislative agenda. The administration must gain credibility with
those moderates in both parties who identify with Sen. Jeffords
— a centrist who is conservative on fiscal issues while supporting
environmental issues and moderate judicial nominees. Burdened with
the lingering question of legitimacy after the election controversy,
the Bush administration could have used individuals like Jeffords
in the Senate and Whitman in the administration to show a more balanced
approach. Instead, it has had embarrassing public fights with both
Jeffords and Whitman. The reversal of Whitman on the carbon-dioxide
issue showed an embarrassing lack of control and self-discipline.
Now, with Democratic
Senate chairmanships, the administration will be faced with more
hazardous conditions. Senate committees will be able to use hearings
and inquiries that could harass the administration's efforts and
delay its legislative agenda. The White House cannot afford to drift
in these new waters.
In one sense,
Democratic control of the Senate may actually improve the legislative
fortunes of the Republicans by imposing a greater degree of balance
in policy and legislation. In areas like judicial nominations and
the environment, the Bush administration will be compelled to seek
views and input from outside of its insular, inner circle. It may
be less likely to commit inexplicable blunders like its handling
of the energy plan. The Bush administration showed no strategic
or tactical sense in excluding environmental and public interest
groups in the development of a national energy plan. The Bush administration
went out of its way to display a complete lack of interest in countervailing
views from the environmental groups and, in doing so, guaranteed
that the plan would be discredited before it was released. By simply
giving such groups a chance to be heard, the administration could
have gained the credibility needed to achieve such sweeping proposals.
None of this
means that the White House should not fight vigorously for its conservative
agenda or adopt some vanilla-favored approach to divisive issues.
Rather, the White House needs to be a bit more self-critical in
its handling of the first 100 days. The administration achieved
nothing in some of these fights beyond reaffirming useful stereotypes
for the Democrats. On issues like the ABA and blue slipping, the
White House simply took hits in an exercise of ideological self-flagellation.
The post-Jeffords reviews by the White House and Republican commentators
hardly inspire confidence. If the White House truly thinks that
it has performed well in these areas, it is living in a dangerous
form of denial.
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