Ashcroft (McConnell??) Nomination

[Kenneth Katkin]

Keith Whittington asks whether the circumstances of G.W. Bush's election
creates an exception to the "reigning constitutional convention in the
contemporary United States" that modern Presidents normally are entitled to
place whomever they want in high executive office, subject to "a few minimal
norms of personal and meritocratic 'qualification' and even more minimal norms
of ideological non-extremism."

As some of you probably saw, Michael Sandel had an Op-Ed in the NY Times on
Jan 14 that addressed this very question.  In the Op-Ed, Prof. Sandel recites
the standard normative justification for the generally prevailing convention:
"The deference that the Senate normally accords the cabinet choices of a newly
elected president makes sense as a way of recognizing the will of the people
as expressed in the presidential election.  When senators suspend their own
ideological views in the confirmation process, they do so for the sake of
letting the president do what the majority of the people elected him to do."

Accordingly, Prof. Sandel asserts that Bush's Executive appointments should
not be presumptively affirmed because "the fact that Mr. Bush lost the popular
vote means he cannot claim a mandate for a conservative agenda, or for the
appointment of ideological proponents who would carry it out."

Indeed, Prof. Sandel argues that some civic virtue may result from "using the
confirmation hearings as an occasion for public debate about civil rights,
abortion, gay rights, gun control and, in the case of Ms. Norton, land use and
the environment, [because such hearings would create] a healthy alternative to
a more scandal-driven politics."  He concludes that "[t]he reluctance to
grapple openly with ideological differences has driven disagreement
underground, turning confirmation proceedings into a sordid search for
personal imperfections that can destroy nominees without engaging their views.
 . . . [Thus,] [t]he way to restore civility to the confirmation process is
not to avoid ideological debate but to engage in it more openly."

I find Prof. Sandel's views quite provocative, but am not sure I agree that
Prof. Whittington's inquiry can be satisfactorily resolved on the level of
"high" democratic theory.  Rather, I tentatively think a more persuasive
answer may lie in "low politics."  Is it possible that the "loyal opposition"
in the Senate, given their druthers, would like to sabotage the President's
Executive appointments EVERY four years?  And that the only reason such
Senators don't go all out to do so, every time, is because they are afraid of
retaliation from the same voters--normally a national majority--who elected
the President?  And that this year, the fear of voter retaliation runs the
other way for most Democratic Senators, the majority of whose constituents
voted AGAINST the President and became quite enraged by the election's
endgame?

Prof.. Sandel that "The institution of the presidency is secure enough to
survive frank talk of the fragility of Mr. Bush's mandate."  Perhaps the
question that is truly weighing on the mind of each Democratic Senator is
whether his/her own constituents would approve--or disapprove--of their
Senator being a conduit of such frank talk.

BTW, Prof.. Sandel's Op-Ed is still on-line at:
http//www.nytimes.com/2001/01/14/opinion/14SAND.html

p.s. In response to Prof.. Levinson's comment about the filibuster, I wonder
whether an anti-Ashcroft filibuster wouldn't represent some form of poetic
justice, given the Bush campaign's successful "filibuster" to prevent a
Florida vote count that would have been legally mandated (according to six
Justices) if only the clock hadn't been run out.

Prof. Kenneth Katkin
561 Nunn Hall
Salmon P. Chase College of Law
Northern Kentucky University
Highlands Heights, KY 41099
859-572-5861
katkink at nku.edu