Strengthening Constitutional Self-Government

No Left Turns

California recall, the opportunities

This is a devil’s-advocate response to Peter’s piece (below) and Steven’s NRO Corner piece about the recall. I agree with everything Peter and Steven say about the recall and the initiative at the level of political principle. It debases democratic government because it sucks the republicanism out of it. But I don’t think I agree with the proposition that it’s bad tactics for Republicans to use the recall when they hold the cards. This is a close call. It’s not a question of high theory but of prudence. Let me offer a few prudential considerations that cut against Steven’s arguments.

First, I don’t think conservatives keep any long-term advantage by playing by Marquis-of-Queensbury rules. If the liberals perceive any opportunity to use the recall as Steven suggests, they’ll seize that opportunity no matter how forbearing conservatives are now. Second, even though California is trending Democratic, the electorate is still more conservative than the interests in Sacramento. That makes me doubt how successful liberal interest groups could be over the long haul using the recall as a weapon.

Probably the most important, and hardest to judge, consideration to me is this. Prudence requires conservatives to judge not only (1) how best to do win so as to do good on substantive issues and not only (2) how to make the best of a bad constitutional politics but also (3) whether there is any way to improve the constitutional politics. Let us assume California conservatives know how to make principled arguments against the initiative and the recall. (Big "if," I admit, because few Californians outside of Claremont can make these arguments.) The only way to make those arguments sink in for a broad majority in the state is to force liberals to taste some of their own Progressive medicine.

My precedent here is the federal post-Watergate Independent Counsel statute. Conservatives said that this was another Progressive-style abomination, that it weakened and distracted the President, gave Congress a hammer to bully Presidential appointees, and wouldn’t do any good in cases in which the President was going to be prosecuted because the prosecution was political anyway. (For a refresher, read Justice Scalia’s dissenting opinion in Morrison v. Olson.) The Supreme Court ignored all this in Morrison. So did liberals in Congress -- until after Judge Starr investigated President Clinton. After that debacle, the OIC statute died a quiet and deserved death. The recall would be harder to get rid of, but a prudent statesman at least ought to consider trying.

Discussions - No Comments Yet

Leave a Comment

* denotes a required field
 

No TrackBacks
TrackBack URL: http://nlt.ashbrook.org/movabletype/mt-tb.cgi/2267