By Jacob Weisberg
The Dec. 16 issue of the Weekly Standard opened with the kind of editorial one is used to reading in conservative magazines. Titled “It’s Time to Take on the Judges,” it heaped outrage on the recent decision by a California federal judge halting the enforcement of Proposition 209, passed by the voters last month, which bans state-sponsored affirmative action. The Standard denounced Judge Henderson’s order as “an assault on popular will” and an act of “judicial usurpation.” Growing more indignant by the paragraph, the editors declared it “time to ignite a popular outcry against unelected officials and their efforts to invalidate the results of elections.”
It all made sense–unless you happened to have read an article in the previous issue of the Standard about Proposition 215, the other big California ballot initiative this year, which legalized the use of marijuana for medical purposes. In that piece, William Bennett and John Walters, Bennett’s deputy drug czar during the Bush administration, argued that the will of the people must be overridden. The authors recommended that the federal government invoke an obscure provision of the Controlled Substances Act of 1917 to revoke the licenses of doctors who dare to act on Proposition 215, and that the Drug Enforcement Administration ignore state authorities and “use its power” to “move unilaterally” against pro-pot doctors.
The Bennett position, which has been seconded by Sen. Orrin Hatch of Utah, among others, actually violates two core conservative principles. One is federalism–the preference for state authority over federal. We have all endured screeds from conservatives on how terrible it is for Washington to usurp power from the states. The other is the demand that judges defer to voters. If DEA officials peremptorily overrule state law, as Bennett wants, the issue will end up in the courts, where conservatives will, presumably, favor unelected federal judges backing the decision of unelected federal bureaucrats to overturn the popular will. In defending this scenario, Bennett, Hatch, and others have already used the same argument conservatives denounce as elitist and patronizing in the case of the affirmative-action initiative: that disingenuous wording misled voters about the measure’s real effect.
Decrying a judge’s interference with the affirmative-action initiative is more in keeping with general conservative complaints about “judicial activism”–but not in keeping with much previous conservative huffery on affirmative action itself. Conservatives have often expressed the view that affirmative action is unconstitutional. In other words, when democratically elected governments act pro affirmative action, judges should overrule them; when democracy acts anti affirmative action, the people’s will must be sacrosanct.
Before I get too high on my own horse, I ought to acknowledge that liberals aren’t always paragons of intellectual consistency, either. In the case of the California initiatives, many liberals have been just as outcome-based as the Standard crowd, denouncing federal meddling in the case of 215 while supporting Judge Henderson on 209. And let’s give conservatives a bit of credit. On one significant issue, the line-item veto, they held firm on an old stance even though doing so meant handing a Democratic president a knife to gore Republican oxen (though they did postpone the day as long as possible and are now contending that Clinton’s conception of it is too broad).
But despite these caveats, Republicans are still the biggest offenders when it comes to inconsistency. On a broad range of issues, the tensions–to choose a nice word–between their principles and their practice have gone completely out of control.
The basic reason for these, um, tensions is that many “principles” of modern conservatives were developed under political conditions that prevailed in the 1980s–a Republican president, a Democratic Congress, and a liberal federal bench. Conservatives don’t seem to have anticipated that this might change. They guessed that they would do better with a “strong executive,” a weaker legislative branch, and a restrained judiciary for many years to come.
This meant, for instance, that they didn’t just defend Reagan administration officials, like Ed Meese, who were accused of wrongdoing. They opposed the whole institution of the special prosecutor (a k a independent counsel) in categorical terms as a violation of the separation of powers. Before the 1992 election, congressional Republicans caused the law authorizing special prosecutors to expire. After Clinton’s election, conservatives changed their minds and decided to reauthorize the law. Today, the shoe having switched feet, one no longer hears conservative worries about abuse of the independent counsel’s office. Indeed, conservatives have been busy protesting James Carville’s attacks on Whitewater Special Prosecutor Kenneth Starr as the scandalously inappropriate undermining of an essential institution of public accountability. Five years ago, Republicans were denouncing Lawrence Walsh, the Iran-Contra special prosecutor, with greater venom and less justification. On this point at least, Democrats have been much more consistent, supporting the independent counsel’s office throughout, despite their own partisan objections to Starr.
Arelated issue is presidential pardons. In the closing weeks of the presidential campaign, Bob Dole made a big fuss about Clinton’s refusal to categorically rule out pardons for former associates caught up in Whitewater. Several Republicans in Congress said they would consider such pardons grounds for impeachment. But in 1992, a lame-duck George Bush was following Dole’s urging when he pardoned Caspar Weinberger and five others indicted or convicted in Iran-Contra. Dole called Walsh’s investigation “an outrageous $35 million political persecution of Republicans,” and applauded the pardons. At the time, Walsh was trying to get Weinberger to rat out Bush in exactly the same way Starr reportedly is trying to get Susan McDougal to finger Clinton.
Republicans have also evolved a bit on the issue of “executive privilege,” the doctrine that protects communications between the president and his top advisers. In 1982, Ronald Reagan invoked this right to keep EPA documents about toxic-waste disposal from Congress. George Bush did the same when the House Banking Committee got interested in his administration’s relationship with Iraq before the Gulf War. In instances where Clinton has asserted the privilege, however, the same Republicans who apologized for Reagan and Bush have been scathing in their denunciations. For instance, when Clinton cited executive privilege as a reason for holding back a memo from FBI Director Louis Freeh criticizing his drug policies, Bob Dole asserted that the president had no basis for refusing to divulge it.
A nother case in point is the matter of the president’s powers as commander in chief. In the 1980s, Democrats could be counted upon to argue that Republican presidents needed congressional authorization for military action. Republicans, on the other hand, invariably maintained that the War Powers Act, which Congress passed in 1973 to assert its constitutional power to declare war, was unconstitutional, and that military authority rested solely with the president. Reagan argued that the War Powers Act didn’t apply when he sent troops to Lebanon in 1982, or to Grenada in 1983, or when he bombed Libya in 1986. George Bush didn’t ask permission to invade Panama in 1989. Bush did ask for a resolution authorizing the Gulf War–by far the biggest U.S. military action since Vietnam–but only with the stipulation that he would go ahead with or without Congress’ OK.
Since a Democrat has occupied the White House, it has been a different story. When Clinton sent troops to Haiti over GOP objections, Republicans voted for a resolution declaring that Clinton “should have sought” congressional support. In the fall of 1995, none other than Henry Kissinger–the author of the secret incursion into Cambodia that prompted the War Powers Act–asserted that Clinton must “obtain clear and unambiguous congressional backing” before sending troops to Bosnia. And after not being told in advance about a missile attack on Iraq in September, Republicans on the Senate Armed Services Committee spoke of reviving the War Powers Act.
Or, consider the issue of informing Congress about “covert actions.” In the 1980s, Democrats on the Intelligence Committee were always complaining that the Reagan administration had failed to tell them it was mining Nicaragua’s harbors, arming the Contras, and so on. Republicans said Congress was trying to “micromanage” foreign policy, couldn’t be trusted not to leak vital secrets, and so on. Now, it is Republicans who are apoplectic about a much less compelling incident, the Clinton administration’s failure to relay its knowledge that Iran was secretly arming the Bosnian Muslims. Sen. Arlen Specter says this breach is so serious that he may hold up Anthony Lake’s nomination to head the CIA. But Democrats have admitted their mistake; Lake and outgoing CIA Director John Deutsch have both said the administration should have told Congress about the Iranian arms sales, even though the United States wasn’t behind them. And the Intelligence Committee has concluded that the Clinton people broke no laws in this incident. During the Iran-Contra affair, no comparable gestures of contrition were forthcoming from Republicans. And in that case, laws were broken.
No one expected a great deal of intellectual consistency from Richard Nixon or Gerald Ford. But today’s GOP wants to be the “party of ideas” and looks to leaders like Newt Gingrich and Antonin Scalia to articulate its guiding principles. To govern according to well-defined precepts is a worthy aspiration. But so far, for Republicans, an aspiration is all it is.