This op-ed originally appeared in the Los Angeles Times, January 12, 2001.
by Jack M. Balkin
The disclosure that Linda Chavez harbored an illegal immigrant destroyed her chances to serve in the Bush administration. Chavez can well complain that she was treated unfairly. But behind her personal tragedy lies a more important lesson about the American constitutional system. Chavez is not only the victim of her political enemies. She is a victim of a president-elect who does not yet fully understand the questionable circumstances that brought him into power.
After ordinary elections, the Senate allows an incoming president his choice of Cabinet members. But this is not an ordinary election. Some Americans continue to believe that George W. Bush is not the legitimate president of the United States. They believe that he and the Republican Party stole the 2000 election, aided and abetted by a lawless act from five conservative activist justices on the U.S. Supreme Court. And even if Bush was legally elected president, he lost the popular vote. Not only does he lack a mandate; he has a negative mandate. More voters opposed his policies than favored them. In no way could the election be seen as approval for the far right wing of the Republican Party.
Recognizing this, President-elect Bush promised bipartisanship and compromise. Then he deliberately nominated three Cabinet appointees–Chavez, Gale A. Norton as Interior secretary and John Ashcroft as attorney general–who were far out of the mainstream. And he appointed them in departments dealing with some of the most controversial issues in contemporary politics. He acted as if nothing unusual had happened in Florida and he had won the popular vote by eight percentage points.
The Senate’s power to advise and consent is one of the basic checks and balances of our constitutional system. It prevents the president from nominating unqualified candidates. But it also acts as a brake on ideological frolics. It keeps appointments closer to the mainstream and is a barometer of the president’s political mandate. The more powerful a president, the more easily he can appoint nominees far from the center; the weaker the president, the more he must compromise with the Senate. Thus, in 1986, when President Reagan was at the height of his popularity, he could nominate a jurist of the hard right like Antonin Scalia to the U.S. Supreme Court, but after the Iran-Contra scandals weakened him, he had to settle for the more moderate Justice Anthony Kennedy instead of Robert Bork.
So it is today. Bush enters the presidency under a cloud of illegitimacy, with no mandate other than an obligation to bipartisanship and compromise. Under these circumstances, the Senate has the constitutional authority–and the duty–to hold him to a moderate course. That is true of Cabinet appointments; it is even more true of judicial nominations that offer life tenure.
The tragedy of the Chavez controversy is that her defeat was accomplished under the cover of accusations of illegal conduct, through what she called the politics of personal destruction. But the real objection to Chavez was that Bush should never have nominated so ideological a candidate in the first place. It was no wonder that the knives were out for Chavez. Attacking a nominee’s honesty and morality may give politicians cover, but it is not the most honest way to conduct politics. Candor is necessary in times of constitutional crisis, and make no mistake, the accusations of illegality hovering over the election constitute a genuine crisis for the nation.
Given that crisis, the Senate should take up its constitutional responsibilities seriously. It should hold Bush to his promise to represent all the people. It should reject Ashcroft and Norton if they are too far out of the mainstream and hostile to most Americans’ commitments to civil rights and the environment. Moreover, it should not be afraid to explain its reasons for doing so.
Refusing Ashcroft and Norton for the right reasons would send the correct signal to the president about how he must govern for the next four years. And it would be much better than destroying these public servants through personal attack and innuendo.