History Lesson

Lame Ducks Amok

Not every departing president waddles out of office.

Has any president been written off as a lame duck more often than Bill Clinton? They first pinned him with the label after the 1994 congressional elections; then after his re-election; then after his impeachment; then last fall after the Senate killed the nuclear test-ban treaty; and today once more, now that fund raising has come to dominate his public profile.

What exactly is a lame duck? The term originated, like its fellow faunal terms bull and bear, on the London stock exchange of the 18th century. A lame duck referred to a broker who defaulted on his debts. Americans adapted the term to politics, liberally applying it to any president whose powers are thought to be waning, such as President Lyndon Johnson after he announced in 1968 that he wouldn’t seek re-election or Harry Truman after the Democrats lost control of Congress in 1946. (Some politicians and newspapers even called on Truman to resign.) Passage of the 22nd Amendment in 1951 extended a certain lame-duckery to all second-term presidents because it bars them from running for a third term. At the precise moments of their re-elections, both Ronald Reagan and Clinton were billed lame ducks by newscasters.

Properly speaking, though, lame ducks are those presidents occupying the White House in the weeks between the election and the inauguration of their successors. The original lame-duck interval stretched from Election Day in November to March 4, Inauguration Day. But in 1933, acknowledging that planes, trains, and cars made it easier to set up a new administration quickly, the states ratified the 20th Amendment (the “Lame-Duck Amendment”), which advanced Inauguration Day to Jan. 20 and the start of the new Congress to Jan. 3.

“Lame duck” is typically slung as a pejorative, depicting the outgoing president as someone who has little hope of disciplining his party, influencing legislation, or seeing his appointments confirmed. Certainly, some presidents have gone comatose in the interval between the successor’s election and inauguration, occasionally with baleful consequences. But it’s often forgotten that some presidents have used the time to act boldly and to leave a mark on history.

The most audacious of the lame ducks was John Adams, the second president, who made the so-called “midnight” judicial appointments in 1801. A member of the Federalist Party, Adams lost his re-election bid in 1800 to Thomas Jefferson of the Democratic-Republicans. But in February 1801, with weeks to go before Jefferson and a Republican Congress took power, the Federalists passed the Judiciary Act of 1801. This law created six federal circuit courts and 16 new judgeships to run those courts. It assigned them jurisdiction over a whole new array of lawsuits, greatly strengthening the federal government at the expense of state power—the key point of contention between Adams’ Federalists and Jefferson’s states’-rights-oriented Republicans.

Wasting no time, the lame-duck Adams proceeded to staff the new judgeships (and other judgeships) with Federalists. Republicans howled. On taking office, Jefferson had James Madison, his secretary of state, refuse to seat one of the appointments, Justice of the Peace William Marbury. Marbury sued and ultimately lost—under a Supreme Court headed, ironically, by Chief Justice John Marshall, another of Adams’ lame-duck appointees. Yet the Federalists had the last laugh. More important than Madison’s victory was the precedent that Marbury vs. Madison established: That it is the Supreme Court’s prerogative to decide whether a law is constitutional. This power-grab by the high court marked a great and lasting victory for the federal government over the states.

In contrast, Democrat James Buchanan in 1860-61 proved a model of the classically feckless lame duck. A mediocre president who routinely ranks near the bottom in historians’ surveys, Buchanan struggled haplessly in trying to keep the South from seceding throughout his term. By the 1860 election, his party had split into Northern and Southern factions, allowing the upstart Republican Party, with Abraham Lincoln as its nominee, to sweep the Northern states and win the presidency.

Realizing that the North now held a majority of electoral votes and fearing that Lincoln and the Republicans would act to abolish or imperil slavery, Southern states took steps toward secession. On Dec. 20, 1860, South Carolina first took the plunge. On Feb. 7, delegates from seven states met to form the Confederate States of America. Buchanan was too weak both personally and politically to stop them. He thundered about the illegality of secession but refused to back up his words with force. Congressional Republicans, meanwhile, in consultation with Lincoln, thwarted Buchanan’s slapdash efforts to negotiate the South back into the Union. Civil War became inevitable.

Certainly, weakness more than boldness has been the norm for outgoing presidents. LBJ got nowhere in his last-ditch effort to bring peace to Vietnam, partly because Richard Nixon’s team, through back channels, was secretly discouraging the South Vietnamese from accepting Johnson’s terms. Likewise, when a departing Gerald Ford came out for developing the B-1 bomber and for making Puerto Rico a state, editorialists blasted him (in Time’s words) as one “whose desire to deepen his mark in history is matched only by his loss of real power.”

But occasionally in recent times lame ducks have acted forcefully anyway. In December 1980, as they prepared to turn over the presidency and the Senate to the Republicans, the Democrats staved off a Republican filibuster and managed to pass the “Superfund” environmental law, allowing for the cleanup of toxic waste. President Jimmy Carter signed the bill on Dec. 11, and on his last day in office issued an executive order putting the legislation into effect, lest Reagan’s administration decide to let the fund languish. (To this day, business lobbies use the fact that Superfund was passed during a lame-duck period as an argument for its abolition.) Less admirably, a lame-duck George Bush pardoned a slew of his friends who faced indictment in the Iran-Contra scandal.

Sometimes, too, lame-duck presidencies create not one-sided partisan triumphs but successful compromises. A political scientist named John Massaro has argued that on the whole lame-duck presidents appoint the best Supreme Court justices (although he defines the lame-duck period as the presidents’ final year in office). Because these presidents know that failure to confirm their nominees will mean allowing their successors to fill the vacancy, he suggests, they have tended to choose nominees who are both centrist in their ideology and of manifestly high caliber. John Marshall, Louis Brandeis, and William Brennan are among those high-court legends appointed toward the end of a presidency.

It may well be that lame-duckery is just a state of mind. When lame ducks have succumbed to their status, as Buchanan did, history has judged them as weak or disastrous. But when they have refused to let their wings be clipped—as with Adams and the federal judiciary, and Carter with the Superfund—the gamble can result if not in a boost to their reputations then at least in victories for the causes they value. Bill Clinton, as he packs his bags for Chappaqua, N.Y., may not be able to alter his legacy for history. But he might still be able to do a hell of a lot of good.