Outcomes that occur with probability zero are more relevant, and more confounding, to what we do see than we often think they are. Take, for example, the absence of nuclear war during the Cold War era. One side argued from the absence of war that the Soviet government was a pacific regime, and the West could safely demilitarize Western Europe without fear of Soviet aggression. The other side argued that the absence of war resulted from deterrence: eliminate the deterrent and they predicted we’d observe Soviet aggression.
The President of the United States is both head of government and head of state. As a result, he must not simply act as a party leader, but as the leader of the United States. He is both obligated to respect social traditions that contribute to national unity and behave personally in ways that promote the sound social norms that undergird civil society.
I have almost nothing good to say about President Obama’s policies as head of government. Probably the most important policy with which I wholeheartedly agree is his decision to move toward privatizing space exploration, a pretty insignificant matter. But I give him high marks as head of state. He has behaved decorously, has largely respected the social traditions of the office, and has refrained from personally denouncing his opponents.
Sadly, I have no such confidence in the performance of either of the candidates most likely to be elected President in 2016. It is almost superfluous to detail the reasons that Donald Trump is likely to fall short. He insults his opponents in the most personal terms and vulgarly discusses matters in public that should be private. My friend Heather Mac Donald rightfully argues that his presidency is likely to coarsen an already coarse social culture.
But Hillary Clinton is in my view no better.
I want to conclude my posts on Morrison v. Olson by discussing the majority’s treatment of the separation of powers issue generally. As I mentioned in my prior posts, the majority approved the judicial appointment of the Independent Counsel and the restriction on the President’s removal of the IC through specific doctrines that involved appointment and removal. But then after approving these aspects of the statute (as well as some others), the Court examined what it regarded as the overall separation of powers issue: the Court asked whether these provisions together were consistent with the separation of powers generally. This is…
With a title like The Partisan, we should know what to expect. John Jenkins’s biography on the late Chief Justice loses no chance to paint him in the worst possible light. Rehnquist is a nihilist, dogmatic, cold, distant, a racist, not a hard worker, and dangerously bound to a desiccated judicial philosophy, unless its results would contradict his desired policy objectives, in which case any legal theory will do. This gives the flavor, taken almost at random: “Rehnquist’s judicial philosophy was nihilistic to its core, disrespectful of precedent and dismissive of social, economic, and political institutions that did not comport with…