Ashcroft (McConnell??) Nomination

[Mark Tushnet]

Keith Whittington writes, "My interest here is in trying to get a
handle on what we think the current constitutional regime is, and
whether the
circumstances of Bush's election creates an exception to the general
governing
principles."  I take his interest to be in inquiring into the
possibility that changed norms for nominations signal (or are a
characteristic of) the coming into existence of a new constitutional
"regime," an essentially descriptive inquiry.  (If so, one wouldn't
really be talking about an "Exception" due to the circumstances of
Bush's election, but a generic characteristic that would exist if, for
example, the election had been close, the Senate equally divided, and
the Florida results, while close, essentially uncontested.)  I'm quite
interested in that inquiry, and raise two questions, one general, one
specific to the nomination process.

(1)  In general, what sort of evidence should one compile to support the
proposition that a new regime is in place?

(2)  On the nomination process, as Sandy Levinson indicated, the norms
do appear to have been in the process of changing.  A list of contested
Cabinet and sub-Cabinet nominations would include, in addition, to
Guinier and Sorenson, Anthony Lake, John Tower, Walter Dellinger, Bill
Lann Lee, and Henry Foster.  It seems to me that it's useful to
distinguish among three processes of contest:  (a)  "Borking," which I
take to involve challenges based on unfair characterizations of the
nominee's views on issues relevant to the position (Bork in the eyes of
his supporters, Guinier in the eyes of hers); (b)  "the politics of
personal destruction," which I take to involve challenges based on
aspects of the nominee's life largely unrelated to the nominee's policy
positions relevant to the position (arguably John Tower, Linda Chavez,
and, in a slightly different context, Bob Livingston); and (c) something
that doesn't yet have a standard label but which I call "fair game,"
involving challenges based on disagreements with the nominee's policy
positions (Dellinger, Lee, Foster, Ashcroft -- depending on how things
develop).

One thought that's occurred to me is that we've seen an increase in the
proportion of "fair game" challenges, which may represent the maturing
of a new constitutional regime.  That is, in an earlier order where
there was substantial deference to the President on the policies to be
implemented by presidential appointees, but where glimpses of a new
order could be seen, opponents were forced into Borking or the politics
of personal destruction, which could be rationalized, albeit somewhat
uncomfortably (the latter more easily than the former), as consistent
with what Keith calls "the general governing principles."  (It occurs to
me that it would be nice to be able to describe a sequence in which the
politics of personal destruction was replaced by Borking, which was in
turn replaced by "fair game," but I don't think that's accurate.)

As the new regime "matured," one characteristic new principle would be
the reduction in deference to the President.  (As Bob Dole said after
the 1992 elections, he planned to represented the 57% of the people who
didn't vote for Bill Clinton.)  My guess is that this principle is
consistent with the persistence of (effectively) divided government and
the intensification of partisan differences, which directly affects the
nomination process.

Having said all that, I return to the general question:  What sort of
evidence would I need to make the foregoing argument
plausible/persuasive?