By David French
Thursday, July 12, 2018
Yesterday I wrote a piece rejecting the absurd alarmism
surrounding Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court.
No one will “die” if Kavanaugh is confirmed. His judicial philosophy doesn’t
represent an “emergency” for the “safety” or “freedom” of the American people.
If anything, his jurisprudence will largely lead to greater protections for individual liberty
against state power.
But today? Today, I’m going to reverse course just a bit.
I do think that Brett Kavanaugh’s nomination does help reveal a terrible
challenge to American democracy, but it’s not a crisis of personal safety or
individual liberty. The various versions of the “Bork’s America” speech for
2018 that are circulating online are overblown and ridiculous. No, the
challenge is structural, and a structural challenge can be just as dangerous to
the health of a constitutional republic as cultural or political division over
any given set of issues or values.
Kavanaugh’s nomination — indeed, every modern Supreme
Court nomination — reminds us that the most powerful branches of the federal
government are the most removed from the democratic process. The vision of the
Founders has been subverted. Your vote matters less every year.
Let’s quickly rank — based on contemporary political
power alone — the three branches of American government. First, by far, is the
executive branch. Together with its executive agencies, the presidency now
reaches into every corner of American life. With the stroke of a pen, he can
alter the substantive law governing America’s schools, hospitals, workplaces,
and courtrooms. Under current legal doctrines, the president enjoys immense
regulatory rule-making power, and courts defer to those regulatory judgments.
Moreover, generations of bipartisan capitulation have all
but assured that the single most consequential decision a government can make —
the decision to go to war — is in the president’s hands alone.
As a result, there is now no such thing as true
“gridlock” in American government. No matter who holds the House or Senate, the
president can make law at an astonishing pace. Look at the number of
“economically significant” regulations issued under the last three presidents:
And if you think the Trump administration is “dismantling
the administrative state,” think again. It’s issuing slightly fewer
regulations, but the numbers are still astounding:
Next comes the judiciary, the only branch with a recent
and active record of trumping the executive branch. In the last 50 years, it’s
had immensely more influence over American life than Congress. It has removed
the ultimate decision of life and death — the debate over abortion — from the
democratic process. For good and ill it has helped change not just American
law, but American culture. Any given federal district-court judge exercises
more real power and authority than your average senator. Nationwide injunctions
can, for a time, even allow the lowest level of federal judge to override the
full power of the presidency.
By contrast, Congress is an afterthought. It has formally
delegated an enormous amount of power to the executive branch. (Why are debates
about immigration, national security, and trade so focused on the presidency?
Because Congress has gifted its power to the president.) Moreover, as the
presidency’s power has grown, individual congressmen have become virtual White
House staff, measuring their performance solely based on their ability to
advance the president’s agenda, and midterm elections have come to be treated
mainly as referendums on the performance of the one person who truly matters —
the person in the Oval Office.
This is exactly and precisely wrong. This is not what the
Founders intended. And it’s inherently destabilizing and polarizing. Consider
this: Both the executive and the judicial branches operate under essentially a
winner-takes-all format. Once the president wins his election, he doesn’t need
the consent of Congress to craft regulations, and his authority to craft
regulations is immense. He effectively doesn’t need the consent of Congress to
launch a war.
Similarly, at the end of a Supreme Court case — whether
the vote is 9–0 or 5–4 — there is a winner and a loser. The courts are where
litigants go when compromise has failed. There is, by design, little democratic
recourse for reversing a Supreme Court decision, and losers often lose for a
generation or more — even when their cause is just (think of Dred Scott, Plessy, or Roe).
To put it plainly, this means you — the American citizen
— get one vote every four years (one out of 130 million) to decisively
influence both of the most powerful
branches of government. Your congressional vote, the one you cast every two
years — the one that matters most to the outcome of an election — has become a
vote for a glorified pundit. He or she will issue press releases, argue with
other members on cable news, and pledge to do the bidding of (or oppose) the
man with the true power.
You vote and win, and it’s ecstasy — the kind
eyes-shining exuberance we saw in Chicago in 2008 when Barack Obama promised
hope and change, or the shocked shouts of joy at the Trump campaign’s party
late on election night in 2016. You vote
and lose, and it’s agony. And with the executive and judiciary steadily gaining
authority, while each presidential election isn’t necessarily “the most
important of our lifetime,” each election puts in place arguably the most
powerful president in American history.
The Founders didn’t intend to create executive or
judicial supremacy. They didn’t even intend to create “co-equal” branches of
government. They intended legislative supremacy. The legislature can remove the
executive. The legislature can pass laws over the president’s objection. The
legislature can remove any federal judge or justice from the Supreme Court. It
can sharply limit the jurisdiction of the courts. Its latent constitutional authority is breathtaking in its scope.
But it can attain its intended dominance only through
bipartisan compromise. The supermajorities necessary to trump the executive,
for example, can’t exist without either extraordinary emergencies,
extraordinary foresight, or a necessary deescalation in our political rhetoric
and a transformation of political incentives.
That’s one reason, for example, that “people will die” or
“Flight 93” arguments are ultimately so destructive to our body politic. What
rational person would compromise with an opposing legislative force that wants
to kill you or end America?
Legislative supremacy depends on debate and compromise.
It depends on forging actual relationships. And it puts legislators up for a
vote every two years — making public accountability an omnipresent force in a
House member’s life. Executive and judicial supremacy, by contrast, incentivize
mass tribal mobilization followed by the exercise of raw power to deliver on
the promises that brought tens of millions to the polls. The challenge to
American democracy — even to American unity — is obvious.
The primal scream you now hear from the left — the
panicked reaction to the nomination of Brett Kavanaugh and the possible loss of
one branch of government for a generation — is exactly what you’d hear from the
right if the roles were reversed. Indeed, it was the very panic that arguably
put Donald Trump in office.
Even if the stakes of any given judicial-nomination
battle aren’t as high as the rhetoric suggests, it is a matter of immense
gravity that the most powerful branches of our government are also the most removed
from the popular will. The bottom line is clear: We need to restore the proper
balance, or our diminished democracy will strain the bonds of our increasingly
diverse and fractious constitutional republic.
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